If you’re walking down the street and a police officer asks you for your identification, do you have to provide it? If an officer asks you a question, do you have to answer it? Prof. Capra explains what you must do when stopped by the police.
Professor Daniel Capra is a professor at Fordham Law School. He is a nationally recognized expert on evidence and criminal procedure.
Daniel Capra: You’re walking down the street and a police officer asks you for your identification, do you have to provide it? If an officer asks you a question, do you have to answer it? Those questions are kind of complicated and I’m here to discuss very briefly those complications. I’m Professor Dan Capra from Fordham Law School.
The answer is, as in most legal questions, it depends. If an officer walks up to you and asks for your identification, that is a consensual encounter, if that’s all that they do. The idea of a consensual encounter is that the officer can do it without any kind of suspicion at all, because it’s not considered a seizure under the 4th Amendment. Because it’s consensual, that by definition means you don’t have to comply. You can just say no. You can say I’m not going to say anything; I’m not helping you do anything, I’m not giving you my ID; I’m not going to answer you. Technically that is what can happen. Unfortunately, in reality that’s what never happens. In other words, what happens on the ground is different from what might happen under the 4th Amendment law as it were. At any rate, at least the law says that you don’t have to comply with a police officer’s encounter. You do however have to comply if an officer stops you and has reasonable suspicion. The one thing that the court held in Terry v. Ohio and later cases is that there is an automatic right for an officer in that circumstance. Cnce an officer has stopped you for whatever crime that might be of reasonable suspicion that you’ve committed or about to commit it, you have to give them your ID if they ask for it. Actually, the major investigative tool that’s permitted during a Terry Stop is determining who you are. And so, there’s no right to refuse providing identification in that circumstance. There’s no 5th Amendment right, there’s no 4th Amendment right; that’s basically something that has to be complied with. In terms of a search of the pockets, that’s a little bit different; or a search of somebody's pocket or backpack or whatever it might be, that need not be complied with, either in an encounter because it’s completely consensual, but also even in a stop. Of course they can ask you, but you do not have to comply. And the reason is that an officer’s search powers under stop and frisk are limited to weaponry—reasonable suspicion that there are weapons. So they can’t simply ask or order you to turn over what’s in your pockets unless they have suspicion that there’s a weapon there. And generally speaking, there’s not going to be a weapon that can hurt them in for example a pocket, at least that’s true in most cases. So basically there are dancing rules between the officer and the suspect that not many people know in advance. And officers don’t always comply with when they come into these situations, but those are the rules.
Giving you these rules is Professor Daniel Capra from Fordham Law School, and I’m here for TalksOnLaw.