Recorded at IACP 2024 in Boston. This question came from Trevor, who is from Canada and says he is not a LEO, but he followed down a rabbit hole and has been watching the videos pretty much all week. He has seen many videos on YouTube of police wanting to ID somebody during a consensual encounter where no crime is occurring, and officers threatening arrest for obstruction or failure to ID when the person refuses, and his read is that department policy is not law.
Can you demand ID during a consensual encounter?
Hello everyone, this is Anthony Bandiero. Roadside chat from IACP 2024 in Boston, and we are having a great time here. If you’re here and you have not swung by the booth, 1910, please come by.
He’s binge watching Blue to Gold. That definitely lets you know there’s not a lot going on in Canada.
The officers want to ID because they say they need it for every interaction and to put it in the report. I guess some field report, right? I mean, if there’s no crime, if it’s consensual, what report are they referring to? It’s probably what a lot of agencies call a field contact.
Then often when the person refuses, the officer threatens arrest for obstruction of investigation or failure to ID. And the point that department policy is not law, that’s true.
Is it the case that if it’s consensual contact there’s no crime? Not necessarily. It could be the way the officer is engaging that person. But there could be a crime in the background somewhere. We’ll talk about that. And there is no obligation for anyone to provide their ID, policy or not.
Do you have to show ID during a consensual encounter?
So let’s start with obviously the gist here. If we have a truly consensual encounter, there is no obligation in any state to provide an ID to the police officer. We have a lot of freedom in this country. A police officer could not just come up to a random citizen and say, hey, I need to see your ID. And the citizen says, for what? And he said, because it’s Monday. No. There’s no law.
What do stop and identify statutes actually require?
Every law on the books, they call these stop and identify statutes, and not every state has this, by the way. But if you have a law that has a stop and identify statute, usually the way they’re written is that during an investigative detention the person has to provide adequate ID, sufficient ID and so forth, especially if that actually helps the investigation.
Can you arrest for failure to ID after you clear the person?
I do kind of talk about this in other videos. If you have a stop and identify statute and you stop somebody because you thought they were the suspect, but you determined pretty quickly you got the wrong guy. It was a good stop, I’m not saying it was a bad stop, but after a couple seconds the store manager is saying, no no no, that’s not the guy, he had a different color shirt on, whatever. And you ask the person for their ID and they don’t want to give the ID.
I would be very careful of arresting that person for not IDing themselves under those circumstances. Because when we go to court and we try to justify the government intrusion here, the reason why we’re trying to identify this person at this point, it’s fair to say that this ID does nothing for our investigation. It doesn’t move the ball forward at all.
And that’s why these statutes were passed, to help you investigate crime. Because sometimes, and not sometimes, oftentimes their ID is pertinent to the investigation. Their criminal history can help point you in the right direction about whether or not you have the right person or not.
Why do officers start with a consensual encounter when they already have reasonable suspicion?
But going back to the question at hand, if it is purely consensual, then no ID is required. However, let’s make sure that we also understand that a lot of police officers do have reasonable suspicion, but they actually want to start that encounter as a consensual encounter. Why? One, it actually gets more cooperation. Going up to a person saying, hey, you’re detained, versus, can I talk to you, gives you a different reaction from that person.
So what I’m saying is, if you have an officer being kind of a sweet talker here, be like, hey, can I talk to you for a second? Were you just over by the Piggly Wiggly? Did you see anything going on there? In his head, he believes that this guy actually is involved in a robbery, a theft of some property and so forth. And the guy may actually cooperate more, versus, hey, you’re being detained, and he says, I want my lawyer, type of reaction.
Which means that if the officer then says, look, I really need to see your ID, even though the guy thinks it’s consensual, he may actually have reasonable suspicion, and the court may not actually have a problem with him demanding ID under those circumstances. They would say, okay, even if a person would not feel free to leave right after demanding ID, well, they wouldn’t be free to leave anyway, because the officer has reasonable suspicion. So just kind of keep that in mind, that you may be seeing some of that going on in the videos that you’re watching where cops are demanding ID.
Can a department policy require ID on every contact?
Finally, he did mention that a lot of departments do want documentation of who they’re out with. They want, hey, if you stop a vehicle for speeding and there’s other people in the car, it’d be nice if we knew who else was in the car. That’s fine. Overall I don’t have a big deal with that. If you stop a Greyhound bus, I don’t think IDing 49 people is going to be appropriate, but it is standard procedure to ask passengers for their ID to document it.
But my friend from Canada is absolutely correct, that policy is not law. You have to be careful with that. If you’re demanding ID from somebody who has no obligation to give it, and now they don’t feel free to leave, that’s a detention. If you don’t have reasonable suspicion, you have an unlawful detention on your hands. You can get sued, you can get in trouble, and if it results in a use of force you have some explaining to do.
Who else watches this channel?
I got to tell you, just before I leave. This channel is obviously 90% for cops, but I have a lot of citizens, in fact I have a lot of citizens who don’t even like me, watch this channel. You know, you call them sovereign citizens, whatever. But I got to tell you, when they give me feedback, it never comes off rude to me. They’re just like, hey, I don’t like your no trespassing video, whatever it is.
But I just got to tell you, I do appreciate other people watching the video and giving me feedback on what they think and what their interpretation of the laws are, because I’m looking to grow too. But also, I appreciate you just being here. It’s fun to do these videos, and the more people that watch them and get something out of them makes me happy.
So all right, that’s all I got for you. Until next time my friends, you stay safe.
The short version
- If we have a truly consensual encounter, there is no obligation in any state to provide an ID to the police officer.
- Not every state has a stop and identify statute. Where they exist, usually the way they’re written is that during an investigative detention the person has to provide adequate ID.
- I would be very careful of arresting that person for not IDing themselves once it’s fair to say that this ID does nothing for our investigation.
- A lot of police officers do have reasonable suspicion, but they actually want to start that encounter as a consensual encounter, because it actually gets more cooperation.
- If the officer has reasonable suspicion, the court may not actually have a problem with him demanding ID under those circumstances.
- It is standard procedure to ask passengers for their ID to document it. If you stop a Greyhound bus, I don’t think IDing 49 people is going to be appropriate.
- My friend from Canada is absolutely correct, that policy is not law.
- If you’re demanding ID from somebody who has no obligation to give it, and now they don’t feel free to leave, that’s a detention.
Related from Blue to Gold
- Can You Order Someone to Show Their Hands During a Consensual Encounter?
- Can Cops Demand ID From Passengers If They Smell Marijuana in the Car?
- Can You Detain for a Fake ID?
This article is an edited transcript of Roadside Chat Ep. #720. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
