Why’s He Running? | Can Passengers Refuse to ID?

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).

Tired Grandpa’s Terrible Roadtrip | Cop Placed on Leave

Imagine that your 62 year old father was driving late at night after 11 hours on the road. Would you worry that he would fall asleep? Hopefully he would just pull over somewhere and take a nap if he was tired. Right? Usually, yes. But not in Spokane County, Washington.

62 year old Kevin Hinton had just driven 11 hours into his road trip back from meeting his brand new baby granddaughter in Oregon. He was too tired to continue driving. He couldn’t keep his eyes open. So he pulled over into a parking lot at Terrace View Park, in Spokane, Washington, to take a nap. Shortly afterwards he would encounter Sgt. Clay Hilton with the Spokane County Sheriff’s Office. Within three minutes, Hilton would forcibly remove Mr. Hinton from his vehicle in such a way as to leave him with 8 broken ribs, a punctured lung, severe concussion, shoulder injury, and a disfigured lip. Why? Because Sgt. Hilton thought he was being rude. 

Here’s the raw use of force footage:

Cops Keep Getting This Wrong | When Can Cops Force You to ID?

Police officers around the nation continue to misunderstand the Fourth Amendment and the concept of reasonable suspicion. This footage was submitted by Nick Failla, showing his arrest in Cocoa, Florida several years back. He just recently obtained the bodycam footage.

Many cops believe that they get to forcibly ID anyone they encounter as a part of their job. They are taught that its policy to do this for officer safety reasons. We see it over and over again. In this particular video, the female officer, who is a supervisor, explains repeatedly to Nick that, because she’s a police officer conducting an investigation, Florida law allows her to obtain the ID of anyone she encounters – whether or not a crime is even alleged. Nick disagrees with her and asks repeatedly for an explanation of what crime he was alleged to have committed. Let me see if I can clear this up.

Here’s Nick’s original video, along with his explanations.

This is a common issue and is the subject of one of my most popular Youtube videos – a case currently being litigated in federal court, involving the arrest of my client in a West Virginia Walmart. When police officers encounter pedestrians, they could trigger an investigatory detention, which requires reasonable suspicion, or they could just be engaged in a consensual encounter, which requires nothing. It’s just a conversation. 

Consensual encounters, i.e., a conversation, does not trigger the Fourth Amendment, and can be easily identified if the subject asks whether or not he’s free to leave. If the question isn’t asked, courts will look to the circumstances. Would a reasonable, regular person believe that he was NOT free to leave? Were emergency lights activated? Multiple police officers? Guns drawn? Put in handcuffs? Accused of criminal conduct? Told to show your hands? Told to get on the ground? Or was it just a conversation. 

The question is whether a reasonable person would feel free to terminate the encounter. If the person was involuntarily detained by the officer, that constitutes a seizure under the Fourth Amendment, no matter how brief the detention or how limited its purpose. 

If a detention occurs, the courts require the detaining officer to be able to articulate why a particular behavior is suspicious or logically demonstrate that the person’s behavior is indicative of some sinister criminal activity. It must be based on suspicion of illegal conduct. In other words, it cannot be based on suspicion of legal conduct, such as walking down a public sidewalk, or hanging out on top of your van with two women in a parking lot in front of a lake.

Here, there was clearly a detention. Therefore reasonable suspicion is required. Even in Florida, a police officer must have a particularized and objective basis for suspecting the person stopped of criminal activity.” United States v. Campbell, 26 F.4th 860, 880 (11th Cir. 2022) (en banc).

Innocent Man Arrested & Charged | Should We File a Lawsuit?

This is a West Virginia case – bodycam of a traffic stop for lack of an inspection sticker and warrantless arrest. This involves the Martinsburg Police Department and Patrolman Daniel Smith. The guy in the video, D.J. Beard, wants to file a lawsuit. You tell me, what do you think? Does he have a case, in your opinion? Mr. Beard was almost immediately arrested for allegedly refusing to get out of his car. Is that what the footage shows?

This is the same police department that pulled over, and arrested, Corey Lambert, as featured in another video (different officer though).

Here are the criminal case filings, including the charging documents, police report narrative, as well as the dismissal orders:

Controversial Traffic Stop of Black Vet | Internal Affairs Did What?

About 8 months ago I did a video on the Jacksonville, Florida traffic stop of Braxton Smith by Officer Peppers of the Jacksonville Sheriff’s Office. After the bodycam footage hit the internet and the media, the agency received 14 complaints about the officer’s conduct, including a complaint by Mr. Smith. JSO Internal Affairs performed an investigation and the report has been released.

Here’s my original video with more of the uncensored footage.

Here’s another local TV news report on the same officer regarding the couple he was harassing over the window tint.

Here’s yet another local TV news report about him being aggressive and confrontational at traffic stops.

Female Cop Charged For This Video

Vancouver Police Department Officer Andrea Mendoza allegedly pulled a man’s pants down and threatened to charge a Taser onto his exposed genitals. This occurred immediately after police were called to Walmart due to suspected shoplifting. The man had already said he was “done” resisting by that point, body camera footage shows. But she threatened him again and held the Taser against his skin for 24 seconds.

On Tuesday, the Clark County Prosecutor’s Office filed fourth-degree assault charges against the officer. The local police union has, of course, objected to the prosecutor’s decision. Apparently, all of the criminal charges against the shoplifting suspect were dropped.

Here’s the raw footage, provided by the City of Vancouver.

Is There a Right to Flip the Bird to Police?

Is there a protected First Amendment right to flip the bird, or give the middle finger, to police officers? This footage comes to us from Riverside, California from “Joshing U” on Youtube, showing his arrest, for what he claims was retaliation in response to his giving the middle finger to a California Highway Patrol officer. Back in April I did a video on the same topic, involving my client, Corey Lambert.

The protections of the First Amendment are not limited to spoken words, but rather include gestures and other expressive conduct, even if vulgar or offensive to some. For example, in Cohen v. California (1971), the Supreme Court held that an individual wearing a jacket bearing the words “F**k the Draft” in a courthouse corridor could not be prosecuted for disturbing the peace. 

Consistent with this precedent, although “the gesture generally known as ‘giving the finger’ … is widely regarded as an offensive insult,” Bad Frog Brewery, Inc. v. N.Y. State Liquor Auth. , (2d Cir. 1998), it is a gesture that is generally protected by the First Amendment. See, e.g. , Cruise-Gulyas v. Minard (6th Cir. 2019) (“Any reasonable [police] officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.”); Garcia v. City of New Hope (8th Cir. 2021) (“[Plaintiff’s] raising his middle finger at [a police officer] is a rude and offensive gesture but nonetheless, under current precedent, is a constitutionally protected speech activity.”); Batyukova v. Doege(5th Cir. 2021) (same); accord Swartz v. Insogna (2d Cir. 2013) (holding that giving the middle finger could not support arrest for disorderly conduct); see generally Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law , 41 U.C. DAVIS L. REV. 1403, 1407–08, 1434 (2008) (observing that the middle finger can express a variety of emotions—such as anger, frustration, defiance, protest, excitement—or even “possess[ ] political or artistic value”).

Cops Teach Seatbelt Lesson | NEW Bodycam

This video was submitted by Tyler from Coweta, Georgia, showing him being pulled over while pulling into a gas station over an alleged seatbelt violation. That quickly escalated into a violent use of force wherein Tyler was slammed to the ground and tased. He was then arrested and taken to jail. Although he spoke to the supervisor, he was repeatedly accused of having “fought” with the deputies. Subsequently, all criminal charges were dropped prior to trial.

Here’s the footage of the use of force:

Here’s the police report:

Another Police Scam Exposed | KNOW Your Rights!

This bodycam footage comes to us from Richland, Mississippi, showing Ian Alexander’s traffic stop for speeding. Similar to the video I posted a couple weeks ago from Bexar County, this stop also documents a police officer who believes that he has some sixth sense when it comes to detecting seemingly innocent people who are actually smuggling narcotics. As in the other case, he was completely wrong and achieved nothing other than embarrassing himself and violating the Constitution.

Does a Police Checkpoint on a Bike-Trail Violate the Fourth Amendment?

On a public bike and pedestrian pathway, police in Chicago set up a checkpoint at the exit of a pedestrian bridge and tunnel and subject everyone to search of their bags for alcohol or weapons, without reasonable suspicion, probable cause, or a search warrant. Is that legal? This fantastic submission video was sent in by Cynical Zombie and it’s very well done. The footage is great. But the question is better. Here’s what he filmed Chicago police doing earlier this week:

The Fourth Amendment to the U.S. Constitution generally requires a search of a person or property by the government be reasonable. A governmental search lacking a particularized warrant issued by a neutral and detached magistrate upon a showing of probable cause, is presumed unreasonable and therefore unconstitutional. Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). 

However, a warrantless “administrative search” can be held reasonable and constitutional. The burden is on the Government to show that such a search is in furtherance of a specific and legitimate non-criminal goal, is no more extensive nor invasive than necessary to address that goal, does not give discretion to the searching individual, and does not have as a collateral purpose collection of criminal evidence. United States v. Stafford , 416 F.3d 1068, 1074 (9th Cir. 2005) ; United States v. Bulacan , 156 F.3d 963, 967 (9th Cir. 1998) ; United States v. Davis , 482 F.2d 893, 908 (9th Cir. 1973). 

For instance, without a warrant, people can be lawfully stopped at road checkpoints for detecting drunk driving, driving without a license, and illegal hunting; government employees and students can be lawfully searched, including through drug testing; closely regulated businesses can be subject to periodic inspection; and airplane passengers can have their luggage opened and their bodies patted down. People can also be detained based only on reasonable suspicion of wrongdoing (“not a particularly high threshold to reach”), United States v. Valdes-Vega , 738 F.3d 1074, 1078 (9th Cir. 2013) (en banc), and can be arrested based only on probable cause (“not a high bar”). Kaley v. United States , 571 U.S. 320, 338, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014). Verdun v. City of San Diego, 51 F.4th 1033 (9th Cir. 2022).

Case law conditions administrative searches on being no more intrusive than necessary, and “consistent with current technology. ” It is only rational to interpret the term “consistent with current technology” to apply to both the object of the search and the means of the search (pat-down, x-ray, etc.). An airport security screening search is constitutionally reasonable provided it “is no more extensive or intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives … [and] is confined in good faith to that purpose. United States v. Aukai , 497 F.3d 955 (9th Cir. 2007) quoting Davis , 482 F.2d at 913. 

Where the checkpoint search is intended to detect ordinary criminal wrongdoing, however, the administrative search exception does not apply. Edmond, 531 U.S. at 41; Al-Kidd, 131 S.Ct. at 2081 (“[The] exception [does] not apply where the officer’s purpose is not to attend to the special needs or to the investigation for which the administrative inspection is justified.”). Checkpoint searches that are designed “primarily to serve the general interest in crime control” require a warrant or probable cause. Edmond, 531 U.S. at 42. Whren v. United States, 517 U.S. 806, 811-12 (1996) (“[T]he exemption from the need for probable cause (and warrant), which is accorded to searches made for the purpose of inventory or administrative regulation, is not accorded to searches that are not made for those purposes.”) (emphasis in original). On this point, the Supreme Court was emphatic: “We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” Edmond, 531 U.S. at 41 (emphasis added).