Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training

A question from an officer in Nevada. Defense attorneys are arguing that under a stop and identify statute, a detained person only has to give a name and nothing else. Anthony walks through where that argument comes from, and what he wants his officers to do about it.

Hey guys, this is Anthony Bandiero here bringing a roadside chat. Question is, when it comes to stop and identify statutes, does the person actually have to give more than just their name?

Okay, so this question comes from an officer in Nevada, and it’s really something that I’ve been seeing come up more and more, at least in Nevada, where there’s an argument being made by some defense attorneys. Because Nevada has a stop and identify statute, it’s NRS 171.123, and it says that upon being detained for reasonable suspicion, the person shall identify themselves, and so forth, right, in so many words.

And many other states have this now. Some states don’t have it, California being one of them, but a lot of states do have a stop and identify type statute.

What did the Supreme Court actually say in Hiibel?

The question though is, when we look at the only Supreme Court case on this issue, it’s called Hiibel. Some people say Hibble. I think it’s Hiibel, but I’m not positive. It’s H-I-I-B-E-L.

So what happened in Hiibel, and that’s a case from Nevada by the way, dealing with this NRS. What happened there was an officer stopped Hiibel for suspicion of being involved in a domestic violence. It was an investigative detention, wasn’t probable cause. And Hiibel refused to identify himself per the statute, and he was arrested.

Well, it goes to the U.S. Supreme Court, and the good news and the bad news. The good news is they upheld Nevada’s stop and identify statute. They said that this was lawful under the Fourth Amendment.

The bad news though is when they wrote the case, they kind of made it seem like all you have to give is your name, right. In so many words they’re like, you know, a person would have to give their name, but they didn’t say really identification.

Now I think, quite frankly, it’s a little bit sloppy language. I don’t think they meant literally all you have to give is your name and nothing else, because if that was the case, people with generic names probably could not be adequately identified. The issue in Hiibel wasn’t that he gave just his name. He gave nothing. So the U.S. Supreme Court was not really dealing with how much information.

Can you identify the person without arresting them?

So here is my advice. Okay, when it comes to dealing with these issues, talk to your prosecutor. I’m not your attorney, right. But I’m just saying, what I’m looking for when my officers are dealing with this issue, I’m looking for two things.

Number one, try to identify them without arresting them for some kind of obstruction. Right? If they have a unique name and that’s all they give you, but they have a unique name and you can run them in your database and he pops or she pops up and you’re like yes, that’s the person, the fact that they didn’t want to give you the date of birth, the fact that they didn’t want to give you their Social Security number, whatever you’re looking for, who cares? If you can identify them, move on.

If they’re driving in a car, okay, and you run the plate, the registered owner appears to be that person, and they’re playing games but they don’t want to really give you much more, but it’s a reasonable suspicion stop and you don’t have probable cause to arrest for anything else, and you think it’s that person, move on, right. That’s their identity.

Okay, that’s the first thing. Try to just use your tools is what I’m trying to say.

Does the identification actually matter to your investigation?

The second thing is, fine, they give you Anthony Smith as their name, right, and you think they’re not lying. If they’re lying, that can come up as obstruction. But they’re not really giving you much more information.

The second question is, before you start pulling the trigger on arresting somebody, or citing, you know, you can’t cite somebody if you don’t know who they are, but ultimately you’re going to arrest somebody. The next question is, does it really matter? What investigation are you trying to figure out here where identifying them really makes a difference?

Let me give you an example. Walmart says hey look, we have a shoplifter here. We told him to stop, he didn’t stop, he kept on walking. We don’t put hands on people in our store, so we couldn’t put hands on them, we couldn’t detain them. This is what they look like.

The cop gets in the area a couple minutes later, whatever, sees the person walking, thinks that it is him, detains him. The officer says hey, you’re a suspect in a shoplifting incident, what is your information? The guy says I didn’t shoplift. Well, the cop says well look, you kind of match the description, good enough for government work type thing, so what is your information? He says I’m not giving you anything, right, I didn’t do anything wrong.

And the officer then gets a call over the radio that they actually found the shoplifter on the other side of Walmart. The loss prevention officer, everybody says look, we got the guy, you happen to stop the wrong person. Now it wasn’t a bad stop, it just was the wrong person, right. This is reasonable suspicion, it’s not certainty.

But yet the person refused to identify themselves. What are you going to do? Are you going to be like, you know what, I found that you’re not the shoplifter, but because you didn’t identify yourself you’re now going to go to jail for refusing to identify? Is that your move? I would caution you against it.

Does the demand have to be related to the reason for the stop?

So the case I’m going to use to caution you against this is United States v. Christian. It’s a case out of the Ninth Circuit, 2004, and they talked about basically demanding a person’s identity. They said we can do it. Okay, you can do it. However, they also threw in there that demanding a suspect’s identification during a Terry stop, so long as the request is reasonably related to the detention.

Here’s my problem now. Look, I like demanding the person’s ID if you work in a stop and identify state, right. I think like half the states don’t have this law, so really it’s an empty threat. You can’t arrest somebody for refusing to identify in a state like California, because that is not a requirement there.

But go back to Nevada. Fine, you should try to identify them, because if they have a history of shoplifting that’s going to help confirm that this is probably our guy, right, for example. But now that you know it’s not him, what’s the reason? What’s the purpose now? It’s gone away.

What should you do when the person turns out to be the wrong guy?

And what I want you to do is let the guy go. Right, that’s what I want you to do. That’s making good case law. Don’t let your ego or anything like that get in the way, because if you put handcuffs on that guy and you go to court and you’re like, why are we here officer, and you tell him the whole story I just told you, I don’t think the judge is going to be very happy that the guy took a ride to jail under these facts.

Okay, sure, he should have identified himself initially, but now it’s game over. The guy is not the person. We should just let him go. That’s my suggestion, that’s what I would do. But you do you. If you think I’m wrong in the law, then that’s okay too.

The short version

  • Hiibel upheld Nevada’s stop and identify statute, but the opinion’s language about giving “your name” is sloppy. Hiibel gave nothing, so the Court was not really dealing with how much information.
  • First, try to identify them without arresting them. Run the unique name. Run the plate against the registered owner. If you can identify them, move on.
  • Second, ask whether the identification actually matters to the investigation you are working.
  • United States v. Christian, Ninth Circuit 2004: demanding identification during a Terry stop, so long as the request is reasonably related to the detention.
  • In roughly half the states there is no stop and identify law at all, so the threat is empty.
  • When the real suspect turns up and your guy is the wrong guy, the purpose is gone. Let him go. That’s making good case law.

Related from Blue to Gold

This article is an edited transcript of Roadside Chat Ep. #561. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.