Police, The Fourth Amendment, Qualified Immunity

Stop and identify laws: verbal id only or document required?

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At least since a seminal Supreme Court case in 2006, “stop and identify” statutes have become somewhat popular.  Several states have stop and identify statutes, and, not surprisingly, these statutes sometimes escalate into disputes and then civil suits against the police.  The 2006 Hiibel case made it clear that “reasonable suspicion” must be required under the terms of a stop and identify statute.  What Hiibel did not clarify is whether a stop and identify statute could require a susepect to show documentary id (for example, a driver’s license), or whether it is good enough to verbally state name and address.*  A new case canvasses the state of the law as far as verbal versus documentary id stop and identify statutes, and decides that New Mexico’s statute does not require documentary id, but the police officer gets qualified immunity for thinking that it did.

Case:  MOCEK v. City of Albuquerque, Court of Appeals, 10th Circuit 2015


In light of that careful limitation, we doubt that § 30-22-3 criminalizes the mere failure to produce documentation during a stop for suspicion of disorderly conduct. It is entirely unclear what type of identification a suspect would need to show during such a stop. Nothing on the face of Mocek’s complaint or in case law indicates that any particular document is necessary for the officers to perform their investigative duties, although it is obvious that a person intending to clear security screening and board a plane may need some form of identification. Other states’ “stop and identify”[ statutes also suggest that mere failure to produce documentation is not illegal, as most jurisdictions do not compel suspects to furnish documentation outside the context of traffic violations.fn7

[Fn7:]  There seem to be two exceptions: Colorado, see Colo. Rev. Stat. § 16-3-103(1) (an officer may require a suspect to divulge “his name and address, identification if available, and an explanation of his actions”), and Delaware, see Del. Code Ann. § 1321(6) (an officer who suspects a person of loitering may “request[] identification and an explanation of the person’s presence and conduct”). In contrast, in many states officers may only request name, address, and an explanation of the suspect’s actions. See Ala. Code § 15-5-30; 725 Ill. Comp. Stat. 5/107-14; Kan. Stat. Ann. § 22-2402(1); La. Code Crim. Proc. Ann. art. 215.1; La. Rev. Stat. § 108(B)(1)(c) (also requiring an arrested or detained suspect to “make his identity known”); Mont. Code Ann. § 46-5-401(2)(a); Neb. Rev. Stat. § 29-829; N.Y. Crim. Proc. Law § 140.50(1); N.D. Cent. Code § 29-29-21; Utah Code Ann. § 77-7-15; Wis. Stat. § 968.24. Similarly, some states allow officers to request name, address, business abroad, and destination. See Mo. Rev. Stat. § 84.710(2) (applying only to Kansas City); N.H. Rev. Stat. Ann. §§ 594:2, 644.6 (also requiring a suspect to provide an account of his or her conduct when suspected of loitering or prowling); R.I. Gen. Laws § 12-7-1. The remaining “stop and identify” laws also appear not to require documentation. See Ariz. Rev. Stat. Ann. § 13-2412; Ark. Code Ann. § 5-71-213(a)(1); Fla. Stat. §§ 856.021(2), 901.151(2); Ga. Code Ann. § 16-11-36(b); Ind. Code § 34-28-5-3.5 (a stopped suspect must provide either a “name, address, and date of birth” or a driver’s license, if available, when stopped for an infraction or ordinance violation); Nev. Rev. Stat. § 171.123(3); Ohio Rev. Code Ann. § 2921.29; Vt. Stat. Ann. tit. 24, § 1983. Note that not all states explicitly criminalize non-compliance.

In any event, New Mexico law is not entirely clear on whether someone in Mocek’s shoes might be required to answer basic questions about his identity, such as a request for his address. But Officer Dilley’s only request was for documentation, and failing to show documentation, in isolation, during an investigative stop for disorderly conduct might not amount to concealing one’s identity.

Nonetheless, Officer Dilley is entitled to qualified immunity. A reasonable mistake in interpreting a criminal statute, for purposes of determining whether there is probable cause to arrest, entitles an officer to qualified immunity. . . .

(internal footnotes in block quote omitted except as indicated)


* This post discusses stop and identify for non-drivers. People driving motor vehicles are subject to different rules.

Written by Burgers Allday

December 27, 2015 at 10:54 am

Posted in Uncategorized

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