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Question Title: Questioning of passengers during a traffic stop?

***NOTE: SEE ALSO - Arizona vs. Gant article - 2009 U.S. Supreme Court Decision

E-Newsletter Edition: April 10, 2008

Response Provided By:
Jack Ryan

Always note that state law may be more restrictive on police power than the U.S. Constitution.

QUESTION:

What are the laws regarding the questioning of passengers during a routine traffic stop?

_____

ANSWER:

 

Asking Passenger for Identification
What Happens when He or She Refuses?

On April 4, 2008 the United States Court of Appeals considered a civil rights claim filed against an officer who demanded identification from a passenger on a motor vehicle stop, and arrested the passenger when he refused to comply with the officer’s demand.i  The case involved a motor vehicle stop by an Arkansas State Police Officer, Jeff Harris.



The court outlined the facts as follows:  “It is undisputed that Harris stopped the car being driven by Stufflebeam's grandson because it did not display a license plate. After the grandson produced his driver's license, proof of insurance, a bill of sale, and a title document, Harris asked the passenger, Stufflebeam, for his identification. Stufflebeam angrily replied, ‘You can't do that!’ Harris replied that the law permitted him to ask for identification. Stufflebeam again refused, stating, ‘You either arrest me and take me to jail or I don't have to show you anything!’ Harris returned to his vehicle and requested back-up. When two additional officers arrived, Harris asked Stufflebeam to exit the vehicle. He complied but still refused to identify himself ‘with anger in his voice and expression,’ according to Harris's report. Harris then arrested and handcuffed Stufflebeam and removed everything from his pockets, including a wallet containing a driver's license that identified Stufflebeam. Harris placed Stufflebeam in the back of the squad car, searched the vehicle ‘incident to the arrest’ over the grandson's protest, and then released the grandson and drove Stufflebeam to a local jail where he was booked for obstructing governmental operations.”  The prosecution against Stufflebeam was dropped which led to the lawsuit presented here.

The case raises two distinct issues: First, can an officer ask a passenger for identification during a traffic stop, and second, what can the officer do if the passenger refuses to cooperate with the officer’s request.

On the question of whether an officer can ask a passenger for identification, the court considered its prior decision in United States v. Slater.ii    Slater was the passenger in a vehicle that was stopped at a sobriety checkpoint.  “At the checkpoint, Officer Perry asked the driver, Nicholas Jones, if he had been drinking. Jones replied that he had a couple drinks earlier in the evening. Perry then asked Jones and his two passengers, Slater and Jones's young son, to get out of the car. Perry took Jones to the field sobriety test location, while a civilian volunteer or another officer drove the vehicle to a nearby parking lot. After Jones passed the sobriety tests, Perry asked Jones if his adult passenger was a licensed driver. Jones said he did not know, so the two returned to where the passengers were waiting, and Perry asked Slater if he was willing to drive. Slater replied that he had no driver's license. Perry asked Slater for identification, and he produced a Missouri non-driver identification card. Perry's computer check of Slater revealed the outstanding warrant. [During a search incident to arrest, Slater was found to be in possession of a loaded firearm, leading to a federal charge.] After Slater was arrested and searched, Perry issued Jones three citations for an improperly registered motor vehicle, no insurance, and failure to have his driver's license with him. Jones then left the checkpoint in the car with his son.”

In holding that the mere asking for identification did not violate the 4th Amendment, the court cited to a portion of the United States Supreme Court case, Muehler v. Mena.iii  Mrs. Mena was detained when officers executed a search warrant at her home looking for a gang-banger who had been involved in a drive-by shooting.  The officers were looking for evidence relating to gang activity.  Mrs. Mena, who had nothing to do with gangs, had previously rented a room to the gang-banger.  During the execution of the search warrant she was handcuffed and, at some point, questioned about her immigration status.

In rejecting Mrs. Mena’s claim that the questioning violated her 4th Amendment rights, the United States Supreme Court asserted: “We have held repeatedly that mere police questioning does not constitute a seizure.iv Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual's identification; and request consent to search his or her luggage.”v

Applying this principle in reviewing Mr. Shufflebeam’s claim, the United States Court of Appeals for the 8th Circuit held that asking Mr. Shufflebeam for identification did not violate his 4th Amendment rights.  This did not however end the case since it did not answer what the officer could do if the passenger refused to identify him or herself.

In determining whether the officer had any authority once the passenger, Mr. Shufflebeam failed to identify himself, the court turned to the United States Supreme Court decision in Hiibel v. Nevada.vi

In Hiibel v. Nevada the United States Supreme Court considered the constitutionality of an arrest and conviction based on the failure of the defendant to identify himself to police during a valid “Terry-Stop.”

In Hiibel, the Humboldt County Sheriff’s Department received a call of an assault in the middle of the afternoon.  The caller reported seeing a man assault a woman in a red and silver GMC pickup on Grass Valley Road.  A deputy, Lee Dove,vii was dispatched to the scene and found the truck as described parked on the side of the road.  The deputy noted skid marks in the gravel behind the truck indicating a sudden stop.  He further observed a female in the truck and a man standing on the side of the truck, all consistent with the caller’s report.  The man appeared to be intoxicated and repeatedly refused the officer’s request for identification.  The Court noted that the deputy asked Hiibel for identification eleven times. The man then began, in full view of the cruiser’s mobile video-recorder to taunt the officer to arrest him.  The officer arrested Hiibel for obstructing an officer’s official duties.  The basis of the “official duty” was a requirement under Nevada’s Investigative Stop statute that requires a person to identify themselves to an officer during such a stop.  The Court cited statutes from twenty-states with a similar requirement during investigative stops.viii

In upholding the arrest and conviction of Hiibel, the 5-4 majority of the Court first recognized that the stop of Hiibel met the constitutional standard for investigatory stops, specifically, reasonable suspicion.  The Court extended this reasoning in stating that…

 “…obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder.  On the other hand, knowing (a person’s) identity may help clear a suspect and allow the police to concentrate their efforts elsewhere.  Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault.  Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.”

  The Court noted that it is well established that an officer can ask a subject to identify himself/herself during a Terry stop and the only question was whether an individual could be prosecuted for failing to do so. 

The Court concluded that a conviction for failing to identify oneself during a valid Terry stop in accord with a state statute is valid.  The Court did distinguish the Nevada statute from other states in that it had been interpreted as only requiring a subject to identify himself/herself and does not require the production of reliable and credible identification.

In applying the principles from Hiibel to the circumstances involving Shufflebeam’s arrest, the court noted that Officer Harris had no reasonable suspicion to believe that Shufflebeam was involved in criminal activity; he was merely a passenger in a vehicle stopped for motor vehicle violations.  As such, Hiibel would not justify his arrest since the rule from Hiibel requires that the person(s) being asked to identify themselves must be the subject of a valid Terry stop, i.e. they must be suspected of criminal activity and that suspicion must be supported by reasonable suspicion.  Even though Arkansas is one of the states that has a statute requiring person(s) to identify themselves during a validTerry stop, the court concluded that Shufflebeam was not the subject of such a stop.  Thus, the court concluded that Mr. Shufflebeam’s lawsuit against the officer should go on to a jury.

Key Points from Hiibel:

  • Decision would only have application in states where there is a statutory requirement that person(s) identify themselves during an investigative detention.ix
  • The request for identity must be supported by a valid Terry stop.
  • If the preceding elements are met, the officer may request that the person(s) identify themselves but the case does not allow for an arrest based on a failure to produce “credible and reliable” identification.

Key Points from Shufflebeam:

  • The Unites States Court of Appeals for the 8th Circuit, citing United States Supreme Court precedent concludes that it is not unconstitutional to merely ask for identification.  Note, some states would consider this an expansion of the scope of the stop under state constitutions.
  • The United States Court of Appeals for the 8th Circuit, citing Hiibel concluded that arresting a passenger for refusing to identify himself/herself where the officer has no independent reasonable suspicion to believe that the passenger is involved in criminal activity does violate the Constitution.

CITATIONS:


i Stufflebeam v. Harris, 2008 U.S. App. LEXIS 7156 (8th Cir. 2008).

ii United States v. Slater, 411 F.3d 1003 (8th Cir. 2005).

iii Muehler v. Mena, 544 U.S. 93 (2005).

v Id.

vi Hiibel v. Nevada, 542 U.S. 177 (2004).

vii Deputy Dove was recently promoted to sergeant.

ix Id.

 
       
 


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