Jan 22 2019

9th Circuit: Passengers in a car don’t have to identify themselves

Passengers in a car stopped by police don’t have to identify themselves, according to the 9th Circuit Court of Appeals.

That holds even in a state with a “stop and identify” law, and even if the initial stop of the car (for a traffic violation committed by the driver) was legal.

The opinion by a three-judge panel of the 9th Circuit earlier this month in US v. Landeros is one of the most significant decisions to date interpreting and applying the widely-misunderstood 2004 US Supreme Court decision in Hiibel v. Nevada.

Many police think that the Hiibel decision upheld the Constitutionality of requiring anyone stopped by police to show ID. But that’s not what the Supreme Court actually said.

The 9th Circuit panel that decided US v. Landeros read the Hiibel decision carefully and correctly, and gave important and explicit guidance on the narrowness of its findings and what it actually means for people who are stopped and asked for ID by police.

What does this mean for you, especially when or if you are in the 9th Circuit or want to raise the 9th Circuit’s latest decision as persuasive authority in another circuit?

The facts in US v. Landeros (for purposes of the opinion) were that Mr. Landeros was one of the passengers in a car stopped by police for speeding on a road in Arizona. The stop was legal,  as was the demand for the driver’s license to drive, but what happened next was not:

Officer Baker, in his own words, “commanded” Landeros to provide identification. Later, Officer Baker explained it was “standard for [law enforcement] to identify everybody in the vehicle.” Landeros refused to identify himself, and informed Officer Baker — correctly, as we shall explain — that he was not required to do so. Officer Baker then repeated his “demand[] to see [Landeros’s] ID.” Landeros again refused. As a result, Officer Baker called for back-up, prolonging the stop. Officer Frank Romero then arrived, and he too asked for Landeros’s identification. The two officers also repeatedly “commanded” Landeros to exit the car because he was not being “compliant.”

When Mr. Landeros stood on his rights (sat, to be more precise):

Landeros was arrested … for “failure to provide his true full name and refusal to comply with directions of police officers.” See Ariz. Rev. Stat. Ann. § 13- 2412(A) (“It is unlawful for a person, after being advised that the person’s refusal to answer is unlawful, to fail or refuse to state the person’s true full name on request of a peace officer who has lawfully detained the person based on reasonable suspicion that the person has committed, is committing or is about to commit a crime.”); id. § 28- 622(A) (“A person shall not willfully fail or refuse to comply with any lawful order or direction of a police officer invested by law with authority to direct, control or regulate traffic.”).

These Arizona laws are similar, as the 9th Circuit panel noted, to the Nevada laws at issue in Hiibel.

After concluding that, “A demand for a passenger’s identification is not part of the mission of a traffic stop…. The identity of a passenger… will ordinarily have no relation to a driver’s safe operation of a vehicle,” the 9th Circuit panel proceeded to the government’s other rationales for demanding that passengers identify themselves, and for arresting them if they decline to do so:

Arizona Law provides that “[a] person shall not willfully fail or refuse to comply with any lawful order or direction of a police officer invested by law with authority to direct, control or regulate traffic.” Ariz. Rev. Stat. Ann. § 28-622(A). The question that remains, then, is whether law enforcement could lawfully order Landeros to identify himself, absent reasonable suspicion that he had committed an offense.

To answer this question, the 9th Circuit looked at both the Supreme Court’s decision in Hiibel and at earlier Supreme Court precedents left unaffected by the Hiibel decision:

In its opinion, the Court distinguished the circumstances of Hiibel’s arrest from those of an earlier case, Brown v. Texas , 443 U.S. 47 (1979). Brown overturned a conviction under a Texas “stop and identify” law similar to that at issue in Hiibel . Id . at 49–50. Unlike Hiibel, Brown was stopped, detained, and interrogated about his identity even though there was no reasonable suspicion that he had committed any offense. Id . at 51–52; see also Hiibel , 542 U.S. at 184 (discussing Brown ). Brown held squarely that law enforcement may not require a person to furnish identification if not reasonably suspected of any criminal conduct. Brown , 443 U.S. at 52–53. In short, Brown holds that an officer may not lawfully order a person to identify herself absent particularized suspicion that she has engaged, is engaging, or is about to engage in criminal activity, and Hiibel does not hold to the contrary.

Since the demand for identification was illegal, so was the continued detention:

As explained above, the officers insisted several times that Landeros identify himself after he initially refused, and detained him while making those demands. At the time they did so, the officers had no reasonable suspicion that Landeros had committed an offense. Accordingly, the police could not lawfully order him to identify himself. His repeated refusal to do so thus did not, as the government claims, constitute a failure to comply with an officer’s lawful order, Ariz. Rev. Stat. Ann. § 28- 622(A). There was therefore no justification for the extension of the detention to allow the officers to press Landeros further for his identity.

The court explicitly distinguished a “request” for ID from a “demand”, and rejected the government’s invitation to infer approval for demands (or sanctions for saying “No” or standing mute in response to them) from precedents upholding consensual searches:

The government repeatedly notes that this court’s precedent permits police to “ask people [including passengers in cars] who have legitimately been stopped for identification without conducting a Fourth Amendment search or seizure.” United States v. Diaz-Castaneda, 494 F.3d 1146, 1152 (9th Cir. 2007) (emphasis added). But we need not resolve whether that precedent remains valid…. Regardless of whether the first request for Landeros’s identification was lawful, law enforcement’s refusal to take “no” for an answer was not. Diaz-Castaneda does not suggest otherwise.

The court also rejected the circular reasoning in the government’s effort to “bootstrap” refusal to comply with a demand for ID into a violation justifying that demand for ID :

The government also contends that Landeros’s refusal to identify himself “provided reasonable suspicion of the additional offenses of failure to provide identification and failure to comply with law enforcement orders.” Arizona law provides: “It is unlawful for a person, after being advised that the person’s refusal to answer is unlawful, to fail or refuse to state the person’s true full name on request of a peace officer who has lawfully detained the person based on reasonable suspicion that the person has committed, is committing or is about to commit a crime.” Ariz. Rev. Stat. Ann. § 13 -2412(A). By the plain text of the statute, Landeros could not have violated Section 13- 2412 because, as already explained, the officers lacked reasonable suspicion, at the time they initially insisted he identify himself, that Landeros had committed, was committing, or was about to commit any crimes.

Where does this leave the law in the 9th Circuit with respect to a demand for ID made by police to a person who isn’t operating a motor vehicle that requires a driver’s license?

If, and only if:

  1. You are in a state such as Arizona or Nevada that has a “stop and identify” law (California, the largest state in in the 9th Circuit’s jurisdiction, has no such law); and
  2. You have been legally stopped on reasonable suspicion of some crime other than failure to identify yourself or show ID; and
  3. The demand for ID is either “(1) part of the stop’s ‘mission’ or (2) supported by independent reasonable suspicion” of the commission of some other crime;

Then you can be required to verbally identify yourself to police (“My name is Jane Doe”).

It’s important to note that neither the Supreme Court in Hiibel v. Nevada, nor the 9th Circuit in US v.  Landeros, reached the question of when, if ever, a pedestrian or passenger in a car, as distinct from a driver required to have a license to operate a motor vehicle, can be required to show ID, even if they happen to have an ID card or other evidence of identity on their person or in their possession.
As the 9th Circuit noted of the Supreme Court’s decision in Hiibel:
The Court did not mention that the officer’s request for “identification,” which it understood as “a request to produce a driver’s license or some other form of written identification,” id. at 181, demanded more than state law required Hiibel to provide.
We supported Dudley Hiibel, and we continue to think that Hiibel v. Nevada was wrongly decided. But we welcome the 9th Circuit’s recognition of the Hiibel decision’s limits.

13 thoughts on “9th Circuit: Passengers in a car don’t have to identify themselves

  1. Pingback: Black California Man Awarded $60K Settlement Following Arrest for Refusing to Give His Name During Police Traffic Stop

  2. Pingback: Black California Man Awarded $60K Settlement Following Arrest for Refusing to Give His Name During Police Traffic Stop – CONTEXT19.COM

  3. You do not have to provide ID to an officer just because he requests it when you are just a passenger in a car that is stopped for a traffic violation.

  4. My concern is if you are a passenger and,refuse, you are giving the officer more,reason to search or continue to ask questions..it is not right for an officer to get upset and want to make his position known by making a small situation bigger…

  5. There are big problems here. When people know their rights and refuse unlawful orders many police officers let their emotions decide their next actions. Everything that happens after that unlawful order and the pursuant situation is the fault of no one but the officer. The escalation happens because of an officer that cannot separate their emotions from the oath they have sworn and in many cases, the officer will blame the individual that is only standing up for their personal rights and liberty. It is unfortunate that this is such a big problem, but video record every interaction with police officers. They can tell any lie to get information from you to try and find a crime to charge you with which means you cannot trust any of them. They are fully protected by the government in lying to citizens to extract any information that supports building a case against you. Politely decline unlawful orders and do not talk beyond that. Officers have, will, and do let their emotions run unchecked when someone defies their unlawful orders and they will intentionally look for more charges to give you even if those charges are that officers’ word only and nothing else. Be careful out there and I hope more people are understanding the police state that has taken hold of law enforcement in this country.

    Be respectful to those that respect you. Wish no ill will on others. Do your best to be polite. The training these officers are given has direct conflicts with individual rights and liberties. A lot of officers are probably good people, but when training takes over they are like robots. They believe they are doing what’s right and making the world a better place. Until they start questioning their own behaviors and training this will not change. Until they realize that stacking charges on a person for standing up for their individual rights, people that are trying to put food on the table for their families and keep a roof over their head, that this is not only wrong but can severely hurt innocent people and rises to the level of terrorism by its very definition. Wives, husbands, and God forbid children. Police officers that do this to people and don’t question what they’re doing have become everything they claim to stand against.

  6. The internet is FULL of videos of cops abusing their authority. People do not sue as often as they should fir two reasons:
    1- it’s often difficult to find an attorney, in the area, who will take their case. You have to go outside, sometimes to another state, to find an attorney to take the case. Lawyers are afriad to “bite the hand that feeds them”, AND don’t want to piss off their judge friends.
    2- it ALWAYS costs $$$ to file lawsuits. A person living paycheck to paycheck more than likely cannot “find” the $$$ it takes to file a lawsuit. So, most citizenry take it up the wazoo and keep on moving with a huge amount of justified anger for the crminal justice system in their hearts.

  7. Marie ruiz: Your thinking is precisely the reason why the Constitutional rights of people can be usurped and degraded. No “officer” should be upset about a person’s legitimate expression of their lawful rights. If the officer feels that way, he or she needs more training.

  8. These officers put their lives on the line every minute of every day they work. Although there are a few bad apples, they are few and far in between…a vast majority of cops are genuinely good people that want the best and safest environments for all. With that said, a vast majority (not all) of people who refuse to comply with simple requests to identify themselves, whether they are passengers or not, are simply instigators and looking to prove some point. Those that don’t comply for this simple request usually have something to hide.

  9. JohnD You need to be able to separate the law from your emotion and bias. The point is that you don’t have to provide ID as a passenger unless there’s reasonable suspicion you have committed, are committing or are about to commit a crime. Imagine you’re in an Uber as a passenger and the driver gets pulled over for speeding. Do you think that an officer has the right to ask or have you produce an ID? What does the officer pulling the Uber driver have anything to do with you as the passenger? You’ve done nothing wrong. What crime have you committed that would require you to do so? Officers have taken an oath to uphold the Constitution; part of which guarantees you the right from them conducting unreasonable searches and seizures (Fourth Amendment). The point is that an officer even broaching on the subject of demanding your ID to begin with, a subject they have absolutely no right to broach in the first place if you’ve committed no crime, is illegal. One begets the other.

  10. Lot of pro’s and con’s here. Comply and forgo you rights or stand up for your rights and take the chance of being arrested which will cost money and time. I can’t tell who is the good cop and who is not. They all dress alike.

  11. In response to “J” you are completely wrong in your narrative written above. Completely wrong. It’s not “unlawful” of any Police a officer to ask a passenger(s) for ID. It’s a question not a demand. More times than not and for reasons you will never understand because you aren’t a Police Officer, criminals hide behind those very exact situations. And my question is this, why not provide the ID? If you did nothing wrong what is the harm with giving the Officer ID? There are reasons behind why the Officers attempt to ID people in the car on traffic stops…if they say no, then they say no that’s it. End of traffic stop.

  12. “If you have nothing to hide, why not produce ID?” If you have nothing to hide, why not let the police search your house? If you have nothing to hide, why not let the police put cameras in your house? If you have nothing to hide, why not allow the State to inject a tracking chip under your skin?

    No. Just no. I don’t have to have a “reason” to assert my rights. Perhaps before you post or speak, police should run a background check, to make sure you’re not likely to say something illegal. You don’t have anything to hide, do you?

  13. Scott W. That’s ridiculous. Regardless of whether or not you have something to hide it’s not the point the point is is that you have rights you either use them or you lose them simple as that saying yes to Cops on the time we’re going to forget how to say no. Generally all the police do is escalate situations anyway.

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