About California Stop and ID Law
On May 19, 2014, the California Supreme Court issued its long-awaited opinion in In re Carlos H. which resolved the long-standing uncertainty surrounding the status of California’s stop and identification law. California’s stop and identification law is codified at California Penal Code section 634 and requires an individual to identify himself or herself to a law enforcement officer under certain circumstances. The stop and identification law requires that an individual provide his or her name, address and date of birth for "any officer who has stopped him upon a reasonable belief that the individual is committing, has committed or is about to commit a public offense." While there is a lively debate among academicians and commentators (as well as a few judges) on both sides of the issue of whether the law is constitutional, few people know what the law actually requires.
California Penal Code section 634 was enacted in 1971 to fill the void left by the United States Supreme Court’s decision in Kolender v. Lawson, 461 U.S. 352 (1983) which struck down a California vagrancy law as being unconstitutionally vague. As a general rule, there is no federal constitutional duty for an individual stopped by an officer to provide identifying information. Under the Fourth Amendment, the "stop and identification" is simply a search.
The most common question that the Court received and has been asked since the opinion was issued is what exactly an individual must do if stopped by an officer. The Court held that the officer must "reasonably believe that the information was necessary to prevent an imminent violation of section 148 …" In In re Carlos H. , the California Supreme Court effectively found the stop and identification law to be constitutional under the Fourth Amendment of the United States Constitution. The Court stated: We hold that the Fourth Amendment is not violated when, under the circumstances described in section 634, an officer performing a proper investigatory stop of a pedestrian detains him for the limited purpose of requesting identification from him. Because such a request is justified by the need to confirm or dispel the officer’s suspicion concerning the need to issue a citation or make an arrest for violation of section 148 …, the officer’s request to the individual for identification does not constitute an unreasonable seizure for Fourth Amendment purposes.
This holding settles the debate about the legitimacy of the stop and identification law.
The Court further reasoned that the stop and identification law is "narrowly cabined" in its restrictions as it is limited to pedestrians stopped for investigation of a violation of Penal Code section 148. Under section 148, it is a crime to resist, delay or obstruct a peace officer, public employee or emergency technician in the performance of their duties. Where the individual is stopped in a vehicle, Penal Code section 12953(a) requires a driver to provide his or her driver’s license upon request, and as a passenger to provide his or her name, address and date of birth if requested. Therefore, the difference between the two sections is that in a legitimate traffic stop this request for identification is permissible under the stop and identification law, but if the individual is stopped as a pedestrian, the officer must have a reasonable belief that the individual is violating Penal Code section 148.
Obligations Under California Stop and ID Law
Under California Penal Code 837, California is a "stop and identify" state. This means that when of Law Enforcement Officers stops an individual and reasonably suspects them of committing a crime, any required identification must be presented.
What does this mean? Let’s say you match a description given of a suspect in a robbery, violent crime, or felony. If an Officer stops you and asks for your identification, this order must be complied with by California law. Failing to present an ID when it’s requested can lead to a second charge against the defendant, often bringing about other criminal charges as well.
But what if you don’t have proper ID available to show the officer? Let’s say you are temporarily residing with someone else and didn’t grab your wallet before you headed out. If you don’t have ID on you, you are required to identify yourself. This is NOT the same as carrying a State ID. You can still be charged with failure to identify yourself should you not do so.
What constitutes a "reasonable suspicion" is determined by the officer. If an officer decides a person is behaving suspiciously, being pulled over for any number of reasons causes the officer a reasonable cause to view the driver’s behavior as suspicious. If you’re fairly certain you aren’t being stopped for a legitimate reason, trying to refuse to show an ID won’t help your case; it will just give the officers another reason to detain you.
If you don’t have a California driver’s license in your possession in an illegal stop and ID contact, you may be charged with a misdemeanor under California Penal Code Section 13002, which states: "Any person who is a resident of, and has a license to operate a motor vehicle in, any other state, United States possession or territory, or in any foreign country, may operate a motor vehicle in California without a California driver’s license, for a period not exceeding 60 days from his or her entry into this state as a resident or within the period for which the person is licensed, whichever is the lesser period, if and while the person is in possession of a valid license for the operation of a motor vehicle."
There are numerous exceptions to stop and ID laws that are defined under California Penal Code Section 13004. However, only a few of those are applied in a police encounter.
Your Rights During a Stop
The rights of individuals when they are stopped depends on the circumstances. Remember that all these legal rules assume that there has been a "stop" – that is, that the police interacted with you in some way that caused you to stop or stay in place.
Q: SCENARIO 1: Do I have to stop in the middle of the street just because the police officer asked me for my license and insurance?
A: No. The police usually do not have the right to simply ask you for your documents without any other circumstances. If the police simply want to check the papers without stopping you, you have the right to say no. You may not want to let the police know that you have committed a traffic infraction by not having your papers with you. According to the 4th and 5th Amendments of the Constitution, you are not required to stop your automobile (or yourself) simply because the police have asked you to.
Q: SCENARIO 2: I was pulled aside by the police and they asked me what I was doing on the street at this hour. Do I have to answer their questions?
A: It depends. It is legal for peace officers to stop and question individuals whom they reasonably suspect may be involved in criminal activity. Signs will be suspicious if they point to you as an individual who might violate the law.
Additionally, the police officer must be certain about the following factors:
a. The circumstances surrounding you must suggest that you are acting suspiciously (i.e., if you are at a normally quiet park at 3 a.m. from April 1st to October 31st, there may be reason for the police officer to stop and question you);
b. The police officer must be personally aware of you (i.e., if you and the officer know each other from past interactions, the police officer may stop and question you); and
c. Your presence at that time or at that location is unusual (i.e., if you are jogging through a neighborhood at 3 a.m., the police officer may stop and question you).
Q: SCENARIO 3: I was legally stopped for suspicion of driving while intoxicated. Do I have to answer their questions?
A: You do not have to answer the police officer’s questions. You have the right to remain silent in California. However, you may still be arrested for DUI in California if:
a. The arresting police officer believes that you have been driving under the influence;
b. Your blood alcohol content is over .08;
c. You do not have a medical condition that makes it impossible for you to take field sobriety tests; and
d. Your immigration status.
Also, if the officer does not suspect anything illegal, you do not have to answer his or her intrusive questions. You may firmly and politely tell the officer: "I am free to go and do not wish to answer your questions." You have the right to refuse to speak to the officer in this instance.
You may be able to refuse to answer an officer’s questions if you believe the questions are illegal or inappropriate. You may be able to refuse to answer if the officer is inquiring about your immigration status. The law says that immigration status is not relevant to the story the officer is trying to collect.
Detention vs. Arrest
The distinction between a detention and an arrest is an important one. Detentions are subject to probable cause standards that have been relaxed over time from Terry v. Ohio (1968) 392 U.S. 1, 21-22 ("Under the Fourth Amendment, of course, a policeman may, consistent with the Fourth Amendment, stop and briefly detain a person for purpose of asking him questions if there is reasonable suspicion based on ‘specific and articulable facts’ that he is involved in criminal activity.") to the relaxed standard announced in Hiibel v. Sixth Judicial Dist. Court of Nevada (2004) 542 U.S. 177, 185-186 ("[T]he reasonableness of police officer questioning in this situation does not turn solely on the existence of probable cause to make an arrest. The Eighth Circuit has thus written that ‘a brief stop or detention based on reasonable suspicion is a less intrusive event tantamount to a Terry stop.’") and subsequently codified at California Penal Code § 224.2(e) ("In making an investigative stop, a peace officer may detain the person for a reasonable time that is appropriate to conduct a reasonable investigation under the circumstances.") But an arrest can be made upon a showing of probable cause.
In addition, once a detention is made, the subsequent actions of the party being detained may impact whether the stop is later deemed a true arrest or not. In Smith v. McMahon (2001) 248 F.3d 1137, a panel of the Ninth Circuit reviewed the issue of when the investigatory stop escalated to an arrest, and held that it was when the plaintiff said "okay" and turned and "put his hands up." Taking the facts in the light most favorable to the plaintiff, the Court found that he "had a right to know at that stage whether he was just being investigated or whether there was probable cause to arrest him," and thus found that the mere fact that plaintiff ran prior to being arrested did not alter the fact that he was given no other choice than to submit to the actions of the officer.
In short, if you comply with the demands of the officer, it will be deemed a detention. If you refuse to comply, and are arrested, case law supports your position that the officer should have explicitly told you that you were under arrest first.
Penalties for Not Complying
When an officer in the field makes a request to Stop & ID, a refusal to comply with that order could result in a variety of consequences.
First, the officer can make a forcible seizure of a person. That itself may lead to some disciplinary action against the officer if it’s determined that the officer exceeded "reasonable suspicion" or the use of the particular seizure was otherwise uncalled for under certain circumstances.
Second , a refusal to participate in a Stop & ID event could lead to other criminal consequences. A felony 403 pc charge could be filed against the person, or they could be charged with a misdemeanor under 148 pc for obstructing or resisting a police officer. Note that a forceable seizure also raises the potential for a civil lawsuit in addition to the criminal charges.
Recent Changes and New Developments
On August 30, 2017, Los Angeles City Council voted to expand the city’s stop and identification policy for city police and security officers on duty. A similar policy was already in place for the Los Angeles Police Department, however the city is looking to broaden the Stop and ID policy so that more public employees must abide by the law. The revised policy requires that city police officers and security personnel in public facilities ask for an individual to identify themselves whenever they have reasonable suspicion that a person committed a crime, or when the individual is suspected of engaging in activities that violate an ordinance of the City of Los Angeles. The intent is to prevent such officers from continuously stopping individuals for no apparent reason, and to ensure that limited police and security resources are spent more wisely and effectively. In addition, the change will help to protect rights of individuals who are stopped by such officers.
Helpful Tips for Dealing with Law Enforcement
When approached by law enforcement officers while behind the wheel, it is important to know the following:
• Police may ask for a driver’s license, registration, or proof of insurance, and provide a reason for the stop—this is not a "request" and must be complied with (Communications Decency Act §230). It is important to keep car and registration information easily accessible and readily available. If stopped for a traffic violation, police have a right to request that you present your driver’s license, proof of insurance, and the car’s registration, and keep those items readily available in the compartment of your vehicle. Do not reach all over the car looking for documents, as this may cause police to believe you are "trying to hide something." Police ask for a driver’s license, registration, or proof of insurance to determine if there are any suspensions or prior arrests or citations. When police ask to see your license, registration, and proof of insurance, pull them out and hand them to police without delay.
• You have the right to an explanation of why police stopped you.
• You do not need to give police information about your immigration status (as an aside, you may seek immunity from arrest or prosecution if you witness a crime) .
• You are required to tell police your name if he or she arrests you (Penal Code §148.9(a)(1) and §529.5(a)).
• You have no right to a phone call if police arrest you (Penal Code §851.5).
• You have no right to a lawyer until you are booked at police facilities (Penal Code §1529-1532).
• You are required to submit to a drug or alcohol test (Vehicle Code §23612).
• You have no right to force police to read you your Miranda rights, and police are not required to do so unless you are under arrest or will likely be arrested.
• You cannot film police if you interfere with or obstruct their duties (Penal Code §148(a)(1)).
• You should calm down and use a respectful tone of voice if police stop you for a traffic violation; do not show anger or disrespect.
• Do not interfere with the investigation.
• You should not act in a threatening manner.
• You should ensure you are not standing, sitting, or parking in an area that may be considered a crime scene, such as a fire escape or fire lane, as this may result in obstruction charges.
• You should remain calm and not use foul or abusive language toward police officers.
• If you are drunk and the police allow you to leave the scene, you could still receive a DUI charge if you are stopped at a later time.