If you’re walking down the street in the US 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. Daniel Capra is a professor at Fordham Law School and a nationally recognized expert on the Federal Rules of Evidence.
The short answer, according to Prof. Capra, is that it depends on the circumstances of the request. For example if the interaction is merely a consensual encounter, the police can ask, but there is no legal obligation to comply. The individual is also free to walk away.
The obligations during a "stop," however are different. As a quick overview, a stop or a Terry stop (taking its name from the case Terry v. Ohio in 1968) is neither an arrest nor is it a consensual encounter. It falls in between. Law enforcement can briefly detain a person when they have "reasonable suspicion" that the person was involved in criminal activity. In a Terry stop, a person may still refuse to answer questions, for example by invoking 5th Amendment rights to avoid self-incrimination. Doing so, however, could result in an arrest.
When can police ask that a person open their bags or empty their pockets? There is no obligation to comply in the case of a consensual encounter. In the case of a Terry stop, police can generally only search a person when they have reasonable suspicion that there is a weapon being hidden.
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00:00 Introduction by Professor Dan Capra of Fordham Law School
00:28 What is a “consensual encounter” ?
00:36 Do you have to comply during a consensual encounter?
01:02 Obligations during a Terry Stop
01:35 Police requests to search pockets or other closed containers
02:15 Conclusion by Prof. Dan Capra
TRANSCRIPT: 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. Then 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, once 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 of course 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.