One of the most complicated questions I’m asked is, can a passenger in a car subject to a traffic stop refuse to provide identification to police officers, when ordered to provide it? As a common practice, police officers around the country request identification from traffic stop passengers in order to run a check for warrants. State law varies on this. And the Supreme Court hasn’t yet addressed the issue directly.
The United States Supreme Court has held that a traffic stop qualifies as a “seizure” of both the driver and any passengers, since even a passenger would conclude that an officer was “exercising control to the point that no one in the car was free to depart without police permission.” Brendlin v. California , 551 U.S. 249, 255-57, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007).
Because traffic stops are considered “a species of investigative stop rather than a formal arrest,”9 they are generally evaluated under the principles enunciated by the United States Supreme Court in Terry v. Ohio and related cases. Under Terry , a traffic stop “must be temporary and [must] last no longer than is necessary to effectuate the purpose of the stop.” “The stop becomes unreasonable — and thus constitutionally invalid — if the duration, manner, or scope of the investigation” exceeds “the circumstances that justified the stop in the first place.” Id. (citing Royer , 460 U.S. at 500, 103 S.Ct. 1319, and United States v. Brignoni-Ponce , 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) ).
The basic essentials of a traffic stop are relatively easy to discern with respect to the driver. When an officer stops a driver for a traffic violation, “the officer may ask the motorist to produce routine driving documents” — including the driver’s license, proof of insurance, and vehicle registration. A police officer may run a computer check to verify the validity of the driver’s documents — in order to ensure that the driver is authorized to continue driving — and doing so does not generally unreasonably extend the scope or duration of a valid traffic stop. Even a warrants check for the driver may reasonably be viewed as part of the traffic stop, “as long as this check [is] done expeditiously, so as not to significantly extend the duration of the stop.”
But the rationale for these “routine” checks is significantly diminished as to a passenger who has been seized solely by virtue of being present in a vehicle subject to a traffic stop — particularly for a minor equipment violation like a dirty or non-illuminated license plate. The SCOTUS has not yet addressed whether an officer’s request for a passenger’s identification and a subsequent warrants check fall within the scope of a “routine” traffic stop, and therefore may be done without a reasonable suspicion of criminality or other particularized justification.
But over time, the United States Supreme Court has expanded the authority of police officers over both drivers and passengers during routine traffic stops. For instance, the Supreme Court has held that police officers may inquire into matters unrelated to the stop — as long as the inquiry does not unreasonably extend the stop. (Compare Illinois v. Caballes , 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (holding that use of a narcotics-detection dog to sniff around the exterior of motorist’s vehicle during the temporal duration of the routine traffic stop did not infringe on motorist’s Fourth Amendment rights), with Rodriguez , 575 U.S. 348, 135 S.Ct. 1609 (holding that extending an otherwise- completed traffic stop in order to conduct a dog- sniff was impermissible under the Fourth Amendment, absent reasonable suspicion); see also Arizona v. Johnson , 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (“An officer’s inquiries into matters unrelated to the justification for the traffic stop … do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”); Brown , 182 P.3d at 625, 632 (recognizing that the Fourth Amendment offers little protection to motorists who consent to a request to search their vehicle, even when the officer has no reason to suspect that the motorist is carrying contraband); 4 LaFave, Search and Seizure § 9.3(b), at 510-11.)
The Court has also authorized officers to order both drivers and passengers to exit the vehicle, even absent a particularized safety concern. See Pennsylvania v. Mimms , 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (authority under federal law to order the driver out of the car); Maryland v. Wilson , 519 U.S. 408, 410, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (authority under federal law to order passengers out of the car).
In line with this authority, all federal circuit courts to address the issue have concluded that officers may request a passenger’s identification during a traffic stop and run a warrants check, even absent an independent basis for doing so — at least as long as doing so does not unreasonably extend the duration of the stop. See, e.g. , Fernandez , 600 F.3d at 61-62 (discussing United States v. Henderson , 463 F.3d 27, 46-47 (1st Cir. 2006) ). (See United States v. Fernandez , 600 F.3d 56, 61 (1st Cir. 2010) (“Although the [Supreme] Court has not explicitly held that an inquiry into a passenger’s identity is permissible, its precedent inevitably leads to that conclusion.” (emphasis in original)); United States v. Soriano-Jarquin , 492 F.3d 495, 500 (4th Cir. 2007) (“If an officer may ‘as a matter of course’ and in the interest of personal safety order a passenger physically to exit the vehicle, he may surely take the minimally intrusive step of requesting passenger identification.” (internal citation omitted)); see also United States v. Pack , 612 F.3d 341, 351 (5th Cir. 2010) (holding that officers do not need reasonable suspicion to ask a passenger for his or her identification during a lawful traffic stop and run a computer check on the passenger’s license and background); United States v. Smith , 601 F.3d 530, 542 (6th Cir. 2010) (same); United States v. Sanford , 806 F.3d 954, 959 (7th Cir. 2015) (same); United States v. Cloud , 594 F.3d 1042, 1044 (8th Cir. 2010) (same); United States v. Diaz-Castaneda , 494 F.3d 1146, 1152-53 (9th Cir. 2007) (same); United States v. Rice , 483 F.3d 1079, 1084 (10th Cir. 2007) (same); United States v. Purcell , 236 F.3d 1274, 1278-79 (11th Cir. 2001) (same). But see United States v. Landeros , 913 F.3d 862, 870 (9th Cir. 2019) (holding that an officer may not order a passenger to identify himself absent particularized suspicion that he has or is engaged in criminal activity).
Several state courts have reached similar conclusions, grounding their decisions in (1) generalized concerns for officer safety;
See, e.g. , State v. Williams , 264 Ga.App. 199, 590 S.E.2d 151, 154 (2003) ; Cade v. State , 872 N.E.2d 186, 189 (Ind. App. 2007) ; State v. Martinez , 424 P.3d 83, 89-90 (Utah 2017) (collecting cases).
(2) the need to create a record of witnesses to the traffic stop;
See, e.g. , State v. Griffith , 236 Wis.2d 48, 613 N.W.2d 72, 82 (2000).
or (3) a determination that the request is simply part of (and did not unreasonably extend) the investigation into the traffic violation and does not constitute a separate Fourth Amendment event.
See, e.g. , State v. Ybarra , 156 Ariz. 275, 751 P.2d 591, 592 (Ariz. App. 1987) ; People v. Vibanco , 151 Cal. App. 4th 1, 14, 60 Cal. Rptr. 3d 1, 10-11 (Cal. App. 2007) ; People v. Bowles , 226 P.3d 1125 (Colo. App. 2009) ; Loper v. State , 8 A.3d 1169, 1173 (Del. 2010) ; People v. Harris , 228 Ill.2d 222, 319 Ill.Dec. 823, 886 N.E.2d 947 (2008) ; State v. Smith , 683 N.W.2d 542, 547-48 (Iowa 2004) ; State v. Landry , 588 So.2d 345, 345-47 (La. 1991) ; State v. Gutierrez , 9 Neb.App. 325, 611 N.W.2d 853, 858 (2000) ; Cortes v. State , 127 Nev. 505, 260 P.3d 184, 190 (2011).
Other state courts, however, have concluded that officers are prohibited from requesting identification from passengers during a traffic stop, absent reasonable suspicion of wrongdoing or some other case-specific justification beyond general officer safety concerns.
See, e.g. , People v. Spicer , 157 Cal. App. 3d 213, 221, 203 Cal. Rptr. 599, 604-05 (Cal. App. 1984) (holding that an officer unlawfully requested the passenger’s license during a traffic stop for drunk driving, where there was no indication that the passenger would be given custody of the car and the officer did not explain to the passenger his reason for requesting her driver’s license); Commonwealth v. Alvarez , 44 Mass.App.Ct. 531, 692 N.E.2d 106, 109 (1998) (holding that an officer, who testified that he asked the defendant, a vehicle passenger, for his license out of “routine practice” and without any objective basis for suspecting the passenger of wrongdoing, violated the Massachusetts Constitution); State v. Johnson , 645 N.W.2d 505, 510 (Minn. App. 2002) (holding that, in the absence of reasonable suspicion of criminal wrongdoing, the officer had no authority to expand the stop by taking the passenger’s identification and running a warrants check on him); State v. Affsprung , 135 N.M. 306, 87 P.3d 1088, 1094-95 (N.M. App. 2004) (holding, under the Fourth Amendment, that a generalized concern for officer safety, without more, was insufficient to justify requesting the defendant’s identification and conducting a warrants check, where the defendant was simply a passenger in a vehicle stopped for a faulty license plate light); State v. Thompkin , 341 Or. 368, 143 P.3d 530, 534-36 (2006) (holding that the defendant, a passenger in a vehicle stopped for failing to signal a turn, was unlawfully seized under the Oregon Constitution when the officer requested and retained his identification to run a records check, without any reasonable suspicion of criminal activity); State v. Rankin , 151 Wash.2d 689, 92 P.3d 202, 206-07 (2004) (en banc) (holding that the Washington Constitution precludes officers from requesting identification from a passenger for investigative purposes, absent an independent basis for making the request).
