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 interest in solving crimes and bringing offenders to justice.” (Italics added; Hayes v. Florida (1985) 470 U.S. 811, 816.) The Hiibel decision itself held that: “The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop” (i.e., a detention). (at p. 187.) The power to temporarily detain a suspect is, in my opinion, a hollow one without the concurrent power to also require him to identify himself.

As for issue #2, P.C. § 148(a)(1) makes it a misdemeanor to delay or obstruct an officer in the lawful performance of his or her duties. When an officer lawfully detains a person, that person’s refusal to identify himself may, depending upon the circumstances, delay or obstruct the officer in the performance of his duties as he is forced to take the extra time necessary to determine who the detainee is. California case law has not of yet answered this question for us, but has instead inferred that if it can be charged at all, it will depend upon whether or not the detainee’s lack of cooperation, under the circumstances, did in fact delay or obstruct the officer in the performance of his duties. (See People v. Quiroga (1993) 16 Cal.App.4th 961; and In re Gregory S. (1980) 112 Cal.App.3rd 764.)

Out of state authority (although of limited value when evaluating a California state statute) upholds this premise: In State v. Aloi (2007) 280 Conn. 824, the Connecticut Supreme Court found that by refusing to identify himself, the lawfully detained defendant was in fact in violation of a state statute that specifically provided: “A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer or firefighter in the performance of such peace officer’s or firefighter’s duties . . . .” (Gen. Statutes (Rev. to 2001) § 53a – 167a; “Because a refusal to provide identification in connection with a Terry stop may hamper or impede a police investigation into apparent criminal activity, we see no reason why such conduct would be categorically excluded under the expansive language of § 53a-167a.”  (Id., at p. 833.) 

But see In re Gregory S. (1980) 112 Cal.App.3rd 764, 776, where the Court “assume(d) for the sake of discussion” that a violation of Penal Code section 148 may not be premised on a refusal to answer questions, including a request for identification.  (Italics added)  The issue, however, despite the Court’s stated opinion that refusing to identify “probably” is not a P.C. § 148 violation (pg. 779), was neither analyzed nor even discussed in that other valid grounds for upholding a P.C. § 148 (delaying the officer in the performance of his duties) was found by the detainee attempting to walk away.  Also, Gregory S. was decided some 24 years before Hiibel.  Also decided well before Hiibel was the case of Martinelli v. City of Beaumont (9th Cir. 1987) 820 F.2nd 1491, which held that P.C. § 148 was not violated by refusing to identify oneself.  However, the Court in this case, which cited Lawson v. Kolender (9th Cir. 1981) 658 F.2nd 1362 (Cert. granted), as its authority for this conclusion, failed to differentiate between a consensual encounter and a detention. 

A careful reading of Hiibel, Quiroga, and Gregory S. indicates that whether or not P.C. § 148(a)(1) can be charged in a circumstance where a detainee has refused to identify himself is a question that will depend upon the specific circumstances of the individual case at issue.  In those cases where refusing to identify oneself does in fact delay the officer in the performance of his duties (e.g., did it unnecessarily extend the time required to complete the detention or otherwise draw the officer away from completing his other lawful duties), the answer should be “yes.”  If no such delay was caused, then the answer will likely be “no.”

If you choose to make case law on this issue, know that you must be ready describe in detail what it was about the detainee’s refusal to identify himself that in fact delayed or obstructed you in some way: E.g.: Did the detainee’s refusal to identify himself unnecessarily extend the time required to complete the detention or otherwise draw you away from performing other duties? If the answer is “yes,” then we have a good argument that the elements of P.C. § 148(a)(1) have been met.