In some states, when an officer conducts an investigative stop, the person stopped is legally required to identify himself or herself. For example, Utah Code § 77-7-15 provides that an officer may “may demand the individual’s name, address, date of birth, and an explanation of the individual’s actions.” Stop and identify statutes were generally deemed constitutional in Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177 (2004), but North Carolina has never adopted one. Did a recent decision by the Court of Appeals turn North Carolina into a “stop and identify” state anyhow?
Hiibel. The starting point is Hiibel, where a deputy sheriff responded to a report of a man assaulting a woman in “in a red and silver GMC truck on Grass Valley Road.” The officer found the truck and saw a man and a woman standing outside it. The officer approached the man, explained that he was responding to an assault call, and asked the man for identification. The deputy acted in reliance on a Nevada statute providing that an officer conducting a Terry stop “may detain the person . . . only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.” The man repeatedly refused to identify himself and the deputy arrested him and charged him with resisting, delaying, or obstructing an officer under Nevada law. The man – Larry Hiibel – was convicted and appealed his case all the way to the Supreme Court of the United States.
He argued that the Nevada law violated his Fourth Amendment right against unreasonable searches and seizures and his Fifth Amendment right against compelled self-incrimination. In a 5-4 ruling, the Court affirmed Hiibel’s conviction. It began by describing the Nevada law as a “stop and identify” statute and noted that such laws were rooted in, but distinct from, vagrancy laws. The court also observed that the Nevada statute, as interpreted by the Nevada courts, required only that the subject state his or her name – it did “not require a suspect to give the officer a driver’s license or any other document.”
Turning to the constitutional analysis, the Court found no Fourth Amendment violation because “questions concerning a suspect’s identity are a routine and accepted part” of a Terry stop. Asking about a suspect’s identity can help the officer determine whether the suspect is wanted for another offense or poses a threat to the officer or others. Although “the Fourth Amendment itself cannot require a suspect to answer questions,” state law may do so – at least regarding identity given that a “request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop.” The Court also rejected Hiibel’s Fifth Amendment argument, noting that providing one’s name “is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances.”
North Carolina does not have a stop and identify statute. A person driving a motor vehicle must provide his or her license to an officer upon request. G.S. 20-29. But North Carolina has not adopted a statute like Utah’s or Nevada’s that applies to all investigative detentions. A helpful survey of all 50 states with regard to stop and identify laws is here. The Wikipedia entry regarding stop and identify laws, which also attempts to categorize the various states, is here. Such laws vary widely in phrasing and many states, like North Carolina, have no such laws at all. Depending on how one counts, perhaps half the states are stop and identify states.
North Carolina case law since Hiibel. North Carolina’s appellate courts have decided several relevant cases in the years since Hiibel, initially seeming to confirm that people stopped by the police are not required to identify themselves, but later holding that under at least some circumstances they may be required to do so.
- In re D.B., 214 N.C. App. 489 (2011). In this case, an officer was investigating a break-in and located a juvenile suspect. The officer initiated a Terry stop, frisked the juvenile, and felt a plastic card in the juvenile’s pocket that the officer thought was an identification card. The juvenile was unwilling to identify himself, so the officer retrieved the card hoping to determine his identity. In fact, the card was a stolen bank card that belonged to someone else and that gave rise to an additional charge against the juvenile. The Court of Appeals ruled that the card should have been suppressed. It stated that the officer was not entitled to seize evidence of identity during a Terry frisk, noting that although “many states have enacted ‘stop and identify’ statutes such as the one in Hiibel, North Carolina has not.”
- State v. Friend, 237 N.C. App. 490 (2014). This case began with a seatbelt stop. The defendant failed to buckle up while riding as a passenger in a truck driven by his brother. When an officer stopped the truck and began to issue a citation, the defendant said “that he did not have identification and refused to provide the information the officer needed to write him a seatbelt citation.” The officer arrested the defendant for resisting, delaying, or obstructing an officer under S. 14-223. The defendant was convicted and appealed. The Court of Appeals affirmed, finding that “the failure to provide information about one’s identity during a lawful stop can constitute resistance, delay, or obstruction.” It distinguished In re D.B. on the grounds that the earlier case was about the scope of a Terry frisk rather that whether a suspect may be compelled to identify him- or herself.
State v. Harper. That brings us to the recent case of State v. Harper, __ N.C. App. __, 877 S.E.2d 771 (2022), decided by the Court of Appeals last month. It began when officers responded to a call about a customer at a gas station using profanity with another customer. It seems that the first customer, and eventual defendant, took issue with a “blue line” bumper sticker on the second customer’s car and began an argument with him. When police arrived, defendant was arguing with the gas station attendant about other matters. Officers approached the defendant, detained him, and asked to speak with him. He declined. Then they asked him for identification. The defendant produced a printed card with his name on it rather than a government-issued document. The officers continued to press him for further identification, and when he did not provide any, they arrested him for R/D/O. He was convicted and appealed.
The Court of Appeals affirmed. It said that the stop was lawful based on the original call and the “aggressive behavior” the defendant was exhibiting towards the station attendant. And it cited Friend for the idea that a person lawfully stopped may be charged with R/D/O for failure to identify him- or herself. The court stated that the defendant’s “actions prevented and obstructed [the officers] from conducting a proper and prompt investigation into the alleged disturbance,” that he refused to provide “verifiable identification,” and that this made it difficult for the officers to complete their report. Notably, the court did not rely on G.S. 20-29 even though the defendant seems to have been in charge of a motor vehicle at the gas station.
Where does this leave us? The Harper court seems to have viewed this case as a straightforward application of Friend. It is true that Friend said that “the failure to provide information about one’s identity during a lawful stop can constitute resistance, delay, or obstruction.” Still, Harper goes beyond Friend in at least two ways.
- First, the officer in Friend was issuing a citation, a court document that requires the defendant’s name. The officers in Harper apparently wanted the defendant’s name to include it in a report, a police document that does not legally require a person’s name. Anytime an officer conducts a Terry stop, the officer may wish to complete a report – so Harper seems to amount to a holding that a person subjected to a Terry stop may always be required to identify him- or herself.
- Second, the officer in Friend asked the defendant for identification, but apparently would have been satisfied with “the information the officer needed to write him a seatbelt citation.” The officer in Harper obtained the defendant’s name via the printed card, but the court ruled that the defendant could be charged with R/D/O for failing to produce further “verifiable identification.” This may create some tension with Hiibel, as it seemed important to the Hiibel Court that the Nevada statute did not require a person to produce any documents.
Unless Harper is the subject of further review, it seems to represent a significant shift in the law. For many years, my short summary of the law in this area was that providing false information to an officer during an investigative stop was R/D/O but that refusing to provide information was not. Now it seems that refusing to provide identity information – and indeed, verifiable proof of identification – may be a crime.