Refusal to Identify During a Lawful Detention

Refusal to Identify During a Lawful Detention

RC Phillips
DDA Ret.
November, 2014

Question: Is it a crime in California for a person to refuse to identify himself to a peace officer during a lawful detention? My opinion is that depending upon the circumstances, refusing to identify oneself during a lawful detention may be a violation of P.C. § 148(a)(1) for “delaying or obstructing” an officer in the performance of his (or her) duties. Some other “legal experts” disagree, arguing that P.C. § 148(a)(1) does not apply to such a situation.

As I see it, there are two legal hurdles to validating my conclusion on this issue: (1) Is there a legal duty for one to identify himself when lawfully detained? (2) If yes, then is there a California state statute that a detainee is violating when he refuses to identify himself?

As for issue #1, the United States Supreme Court has told us that a state statute requiring a lawfully detained person to identify himself when so requested by a law enforcement officer does not violate the Fourth Amendment. (Hiibel v. Sixth Judicial District Court of Nevada (2004) 542 U.S. 177.) California, however, has no such statute. But it is my argument that law enforcement’s right to temporarily detain a criminal suspect on less than probable cause (i.e., a “reasonable suspicion”) for the purpose of determining whether that person was, is, or is about to be involved in criminal activity—a power afforded by case law only (Terry v. Ohio (1968) 391 U.S. 1)—inherently includes the concurrent power to require that person to identify himself despite the lack of a statute so stating. Indeed, the United States Supreme Court has specifically held that: “[T]he ability to briefly stop [a suspect], ask questions, or check identification in the absence of probable cause promotes the strong government ....

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