Show Me Your Papers!

This is where your right to privacy is protected. This protects you from needing to “show your papers.” There is no place in the United States that I know where you are required to have “your papers.”

If you choose to drive on public roads, if you are stopped for cause, you can be required to identify yourself. Driving on private land? No need for ID.

If you choose to enter a secured, private location, you can be required to show identification. For example, entering a military post/base.

So what happens if the cops show up at your doorstep and “demand” to see ID?

The first thing you need to do is realize that what you hear as a demand might not legally be a demand or order.

Police officers are trained to ask questions in such a way as to give the impression that they are ordering you to do something when they are not authorized to make that demand or give that order. “What’s your name?” is just a question. Under the Fifth Amendment, you are not required to answer that question.

You are not required to answer questions. You can choose to answer questions.

“Hello, we got a report of shots being fired. Were you shooting?” You are not required to answer. It doesn’t matter what they say until they make that magic statement, “You are required to answer.” If they do say you are required to answer, they might end up in a lawsuit.

Here is another magic one: “Do you have ID?” Many people will automatically reach for their ID when they hear this question, even though the cop didn’t even ask to see it. You assumed they took advantage of you.

When I’m presenting to 4th and 5th grade-aged children, I will sometimes ask, “Can I have your name?” or “Will you give me your name?”

When they say their name, I will thank them and then say, “My name is now *the name they gave*. What should we call you?” Many (most) get it. It one of my ways of teaching to listen to the question that is actually asked.

Can A Cop Walk Onto Your Property

The answer is a qualified “yes.” If they have a warrant to search the location, then they absolutely can enter. If they have a warrant to arrest somebody, they can enter under limitations, which I don’t remember. Lacking a warrant, they can only enter as far as the public is allowed.

This means that they can drive into your driveway, park, get out, knock on your door, and ask you questions.

On the other hand, if there is a gate or some other indicator with proper signage to stop the public, then they must stop there as well. They can park in front of your gate and yell at you, but they can’t enter without your permission.

If you are sitting on your doorstep smoking a cigar, they can come up to talk to you. In some areas, Ally says D.C. is one, your doorsteps are considered part of the “public space,” and there are regulations forbidding smoking or drinking in public.

Because you are breaking the law by smoking in a public space, the cops now have a reasonable articulable suspicion of a crime being committed. This broadens their authority to ask questions.

The regulations I found for D.C. indicate that failure to identify yourself is not an arrestable crime. It is a crime, but it cannot be used to justify an arrest nor to escalate the level of suspicion the cop has. I.e. If he suspects you of doing bad things, your refusing to identify yourself cannot be used to justify his suspicion of you doing bad things.

Consentual Contact

If you walk into the police station and ask to talk to a police officer, you are initiating a consensual contact. You are free to end that contact at any time and walk away. Likewise, It is possible that your talking to the police officer has moved this from you having a consensual contact to you being detained.

Consider the situation where a child has gone missing. The police request help from the public. You saw something suspicious, and you called the tip line. A day or so later you get a call from the detectives asking you to come in to speak with them. You do so.

While you are talking to them, you say something that confirms their suspicions that you are the person that done did it. They are not required to tell you when that happens. They are free to let you keep babbling.

You get tired of their stupid questions and accusations, stand, and ask, “Am I free to go?” If the answer is no, you are being detained. If the detention lasts more than a reasonable time, that detention turns into an arrest.

If the cops flashing lights are on behind you when you are pulled over, you are detained. If you are in handcuffs, you are detained. There are times when you should know you are detained even if the cops haven’t told you.

Reasonable articulable suspicion

Reasonable suspicion is a legal standard used to determine if the cops can legally search you.

If an officer stops someone to search them, the courts require that the officer have either a search warrant, probable cause to search, or a reasonable suspicion to search.

Reasonable articulable suspicion is the legal standard that empowers cops to conduct an investigation without a warrant.

This is a balancing act. We are balancing the need of the authorities to perform their police work with the Fourth and Fifth Amendment protections of The People. Without the power to investigate suspicious behavior, cops would not be able to deal with crimes in progress.

Consider the following: the cops are driving by, they hear shots fired, and they see a man wearing a ski mask exit the bank with a gun in his hand and a heavy bag in the other.

If the cops have a reasonable suspicion that this person has just committed a crime. They can articulate that suspicion.

Now consider this version: a call has gone out that the bank two blocks over has just been robbed. The cops see a man running down the road. He’s wearing a ski mask in 90-degree heat. They still have reasonable suspicion.

Or this: The call of a bank robbery has gone out. The cops see a black man walking down the sidewalk. That is not reasonable suspicion.

Once law enforcement has that reasonable suspicion, they can investigate. The articulable requirement means that they have to be able to put that suspicion into words. If they can’t put it into words, it is not good enough.

Police Investigations

If the police are talking to you, they are likely doing an investigation. Anything you say can be held against you in a court of law.

The cops walk up to you as you sit in your front yard; they are investigating something. If they do not have that reasonable suspicion, they can ask questions in an attempt to gain reasonable suspicion.

Consider this scenario: you are driving 60 mph in a 45 mph zone. The flashing blue and whites come on and you pull over. The very polite officer walks up and asks, “Do you know how fast you were going?”

You respond, “I was doing 50 or so.”

You have just admitted to the crime of speeding. The officer now has all the justification needed to continue his investigation.

“Do you know why I pulled you over?” Same thing. You don’t have to answer the question.

They walk up to you in your lawn chair, “How are you doing, sir?” “What’s going on?”

These are questions designed to elicit a response. They hope that the response will lead their investigation someplace. “Did you know smoking in a public space is prohibited?”

Answer that one, and you are answering mens rea questions.

In general, don’t answer questions. Furthermore, don’t be me; don’t be an asshole.

What it really looks like