Last week a Los Angeles police officer detained the movie actress Danielle Watts and told her, “I have every right to ask for you ID…. You do not have a right to say ‘No’…. Somebody called, which gives me the right to be here, so it gives me the right to identify you by law.”

In the aftermath, the Los Angeles Police Protective League (LAPPL) has posted a false and misleading so-called “public service announcement” on the subject of Providing ID To Police Officers.

What happened to Ms. Watts, and what is our reading of the case law on these issues?

The police say they had received a phone call complaining of two people having sex in a car parked on the street outside Studio City. But on its face, Ms. Watts’ complaint of racial profiling seems well founded. She is African-American, her companion (the celebrity chef Brian James Lucas) is European-American, and police often assume that any black woman publicly displaying affection with a white man is a prostitute.

No charges have been filed against Ms. Watts or Mr. Lucas. The car was, by all accounts, legally parked (presumably with the engine not running and the key not in the ignition) when the police arrived, so there was no issue of whether Ms. Watts or Mr. Lucas had a valid drivers’ license to operate the stationary vehicle.

The LAPPL uses the Internet domain, “lapd.com“, which might easily mislead visitors to its website — and is undoubtedly intended to mislead them — into thinking that it is the official voice of the LA Police Department (LAPD). It’s not. The LAPPL is a labor union representing the lower ranks of LAPD officers.

The LAPPL bases its “advice” to the public on the opinions of local California prosecutors:

[T]he friendly prosecutors at the Los Angeles County District Attorney’s Office have said, while failure to identify oneself cannot, on its own, justify an arrest, nothing in United States Court of Appeals for the Ninth Circuit case law prohibits officers from asking for, or even demanding, a suspect’s identification…. The Alameda District Attorney’s Office have opined that a detained person’s refusal to furnish written identification if they have it, or to walk away from an officer requesting identification, is a violation of Penal Code § 148(a)(1). That is the Penal Code section that makes it unlawful to willfully delay or obstruct an officer in the performance of his duties….

We are hopeful the advice of these prosecutors — the ones who decide whether criminal charges are filed — will avoid future encounters with individuals whose erroneous understanding of their “rights” end up leading to either their arrest, or a detention that is prolonged past the few minutes that would have been necessary to ascertain their ID and send them on their way.

The LAPLL links to an article from a 2010 newsletter from the Alameda County D.A.’s office as authority for its claim that for a detainee in California to refuse to identify herself or produce tangible evidence of her identity (if she has such evidence in her possession) is itself a crime.

Not only do officers have a right to require that the detainee identify himself, they also have a right to confirm his identity by insisting that he present “satisfactory” documentation….

Officers may also arrest the detainee for willfully delaying or obstructing an officer in his performance of his duties if he refuses to state his name or if he admits to having ID in his possession but refuses to permit officers to inspect it.

Also note that a detainee’s refusal to furnish ID is a suspicious circumstance that may be a factor in determining whether there was probable cause to arrest him.

As authority for these claims, the Alameda County D.A.’s newsletter cites the Supreme Court’s decision in Hiibel v. Nevada, a case with which we are especially familiar.

Should members of the public rely on this advice from police and “friendly prosecutors”?

No, no. and no.

Police and prosecutors are not your friends.  In the USA, we have an “adversary” system of justice, in which police and prosecutors are, by definition, your adversaries.  In such a system, findings of fact and conclusions of law are made by judges and juries, not police and prosecutors. The job of police and prosecutors in such a system is to try to find a basis for putting you in handcuffs or putting you in a cage, and to advocate diligently against you and your interests.  That’s what “adversary” means.

In addition, police and prosecutors are, with limited exceptions, allowed to lie to you. In practice, they do lie to suspects as a routine part of investigative and prosecutorial practice.  They are trained in lying at the police academy as a lawful technique of interrogation and “undercover” investigation.   It’s a job skill.  They are experienced, professional liars, and often they are experts in the use of deception and subterfuge.

You shouldn’t rely on this blog for legal advice about your rights as a criminal suspect detained by police.   But neither should you rely on “friendly advice” from a police blog, or the opinions of prosecutors — your sworn adversaries, whose job is to lock you up and who are allowed to lie to you to accomplish that goal.

If you have questions about your rights, you can consult a criminal defense attorney. Our friends at the Flex Your Rights Foundation also have lots of good information about encounters with law enforcement officers.

Don’t think this doesn’t apply to you because you haven’t committed and aren’t suspected of any crime. With some exceptions, if police have stopped (“detained”) you, they already suspect you of some crime. If police  don’t have a reasonable articulable suspicion that you are guilty of a specific crime, it’s illegal for them to stop you in the first place. So either you are free to ignore the police and go on your way, you are already suspected of a crime which the police are investigating, or you are being unlawfully detained.

Whatever the merits of the claims by police and prosecutors to have the authority to demand that criminal suspects identify themselves or produce evidence of their identity, police have no such authority over non-suspects. In Kolender v. Lawson, 461 U.S. 352 (1983), the Supreme Court upheld a decision of the 9th Circuit Court of Appeals striking down as unconstitutional a California law (since repealed at the request of the California District Attorneys Association) that purported to require people to identify themselves to police on demand, without requiring that there be any prior basis to suspect them of any crime.

The exceptions are certain suspicionless “administrative” detentions and searches, including those at airports and international borders.  But such suspicionless detentions and searches have been found to be Constitutional only when they are limited to specified purposes — not used as general law-enforcement dragnets in the way that the TSA has done — and when those who are detained and searched are not required to answer any questions. The Supreme Court has yet to uphold any requirement to answer any questions or take any affirmative action to facilitate a search or “produce” evidence — evidence of identity or evidence of anything else — during such an administrative detention and search.

The reliance of the Alameda County District Attorney and the LAPPL on the Supreme Court’s decision in Hiibel v. Nevada as authority for requiring production of ID credentials or documents is misplaced.

The Supreme Court found that the Nevada law at issue in that case required at most verbal self-identification by suspects to police.  So the Supreme Court did not reach the question of whether a law that required production of ID credentials, documents, or other tangible evidence of identification would be Constitutional.  Nor did the Supreme Court address whether, in the absence of such a law, failure to identity oneself or produce evidence of one’s identity could be criminalized, deemed to constitute “obstruction” of a police officer, or considered in determining whether there was a legitimate basis for suspicion, detention, or arrest.

In general, your decision to invoke your rights and not to waive them cannot be used against you. It would be reversible error for a court to allow a prosecutor to point to your decision to remain silent, or not to consent to a search, as suspicious, as evidence of your guilt, or as impeaching your credibility.  We believe it highly unlikely that the courts would upheld a conviction for “obstructing a police officer” solely on the basis of your invocation of your right to remain silent in response to questions about your identity (in the absence, in California, of any explicit law like the Nevada law requiring verbal self-identification) and/or your declining to consent to a search or your person, papers, or other possessions for evidence of your identity.

The further suggestion of the LAPPL and the Alameda County D.A. that while under detention as a criminal suspect you have an affirmative duty to assist the police in finding potentially incriminating evidence against yourself, by searching your own person and possessions for evidence of your identity, and producing it for inspection by police, finds no support in the Constitution, the Hiibel opinion, or any case law with which we are familiar.  This theory is disturbingly reminiscent of the TSA’s claim that travelers are required to take affirmative action to “cooperate” , in whatever manner TSA staff or contractors tell them, with whatever those checkpoint personnel tell travelers constitutes “screening”. Police should know that such a demand and such a search would be unlawful, and we trust that any criminal conviction based on such an overbroad interpretation of the California “obstructing an officer” law would be found unconstitutional.