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You are walking down the sidewalk or any publicly accessible location where you are allowed to walk freely. As you are doing this, you begin to take pictures and/or video. It happens to be near some secure location "Power Plant", "Police Station", "Government Building", etc which you also take pictures and/or video of anything you can see from a public location. A security guard observes you and thinks that this is suspicion behavior. He decides to call the Police to investigate. When the Police show up, they demand ID.

  • Your location is not in a "Stop & ID" state.
  • You are currently still on a publicly accessible walkway.
  • You haven't committed any crime.

Even if the Police comes up with a "creative" reason why he is asking for ID. What legal standing does the Police have to force you to present your ID when no crime has occurred?

Digital fire
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2 Answers2

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The standard for stopping someone and requesting their ID under the limitations in the U.S. Constitution is "reasonable suspicion."

For example, if the officer has a reasonable suspicion that you are taking pictures for the purpose of a secure location for purposes of espionage, or to case the location for a future crime, reasonable suspicion is probably present and you can probably legitimately be asked for you ID.

A creative and intelligent officer can almost always conjure up some reasonable suspicion in the situation that you identify to question you and demand ID. For example, she could state that no one else has taken a picture of that location in weeks and that is is very unusual behavior, that your demeanor or the time of day you were present doesn't seem to be that of someone taking a picture for artistic or journalistic purposes, that you seemed nervous, that a previous criminal engaged in similar behavior before committing a crime fourteen years ago, that a confidential informant (e.g. a nosy neighbor) advised him that there was someone engaged in suspicious behavior at that location, that she read in a police anti-terrorism bulletin that terrorist favor that model of camera, etc.

The nature of the suspicion doesn't have to be shared with you until you challenge it in court.

A dumb cop won't come up with any colorable reason, demands ID for a stated reason ("before you have to do whatever I say") that is inaccurate, admits he has no reason to stop you in a conversation captured by a body camera, and doesn't come up with pretext after the fact before going to the court. In that case, the stop is a de minimis violation of your civil rights justifying a nominal damages award of $1 to you and your attorneys' fees and costs and maybe a consent decree ordering the agency not to do that in the future.

phoog
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ohwilleke
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  • I modified the question title slightly. At what point are you forced to present ID. All the reasons you have suggested are still not enough to require a citizen to present ID to a police officer. Here is an example video with an officer stating most of what you suggested: https://www.youtube.com/watch?v=Oh6WgCbFU_Y – Digital fire Nov 02 '17 at 01:14
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    As I explain in this answer https://law.stackexchange.com/questions/16354/what-exactly-are-an-officers-requirements-in-order-to-demand-id-in-the-us-new even in the absence of a stop and identify statute those reasons are routinely held to constitute sufficient reason to require a citizen to present ID to a police officer. One can argue otherwise as an advocate, but usually you are going to lose on that point. The strongest case for not presenting is one where the police affirmatively articulate an invalid reason (e.g. I don't want you to film police activity). – ohwilleke Nov 02 '17 at 01:22
  • @DigitalFire If you can find an appellate court case that goes the other way, I'd be swayed. But, usually they don't because the bar is set so low. – ohwilleke Nov 02 '17 at 01:24
  • Carlos Miller was arrested for photography in public. He won the case. Here is the arrest; https://www.youtube.com/watch?v=ZvGC58Ew_WI - Here is an article on the case; http://www.miaminewtimes.com/news/carlos-miller-freedom-for-photographers-6385869 – Digital fire Nov 02 '17 at 01:27
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    @DigitalFire He was arrested for photographing police carrying out their duties, which has higher protections than the kind of photography you discuss under the First Amendment (it is considered a form a political speech), and he was not arrested for failure to provide ID but for the photography itself. Both of those are distinctions with great legal significance from the fact pattern that you present. In your scenario, police conduct isn't in the photo, & they aren't arresting someone for taking photos. They are just asking for their ID and asking questions to determine if there is a crime. – ohwilleke Nov 02 '17 at 01:32
  • In my example, I presented a person taking pictures (Still covered under the first amendment). In the situation I presented a PO is asking for a citizen to present ID. There is nothing compelling the person to present it other than a request. IF the person would be detained, the PO would need to articulate a crime the person has or will commit in order to detain them. Further more, I'm a bit appalled that you would suggest people need to "present their papers" at some "creative" request of a PO. – Digital fire Nov 02 '17 at 01:44
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    The protection of the First Amendment is less strong under the case law in your scenario. And, a request is good enough. The PO doesn't need probable cause, just a suspicion that it is possible that a person might in the future (or now) commit a crime involving this activity. Don't be appalled at me. The law is what it is, I'm just the messenger. The reality is, if a PO can articulate any reason that its possible that there could be a crime or future crime link the PO is entitled to ID. Smart POs do that, dumb ones usually have a reasonable suspicion too but are incapable of articulating it. – ohwilleke Nov 02 '17 at 01:50
  • Right, but your phrasing it as "asking" (which a person can legally decline), my question is about being forced to present it or face legal consequence. Or let me phrase it another way, "Ordered" by the police to present it. – Digital fire Nov 02 '17 at 01:53
  • Also, to be clear. If the photographer tells the PO, "I'm taking a picture for X reason that is legal" and presents ID, the PO can do nothing more. – ohwilleke Nov 02 '17 at 01:53
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    If the cop has reasonable suspicion that a crime might be committed, which in any way would be aided by asking a question that isn't self-incriminating or demanding an ID, he may order you to present ID and to answer the question in a Terry stop such as this one under the "totality of the circumstances". What he can't do is arrest you without probable cause if you comply with the Terry stop. – ohwilleke Nov 02 '17 at 01:55
  • Let us continue this discussion in chat. – Digital fire Nov 02 '17 at 02:04
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    @DigitalFire the fundamental problem is that whenever there is a disagreement about whether a particular stop was legal, the determination is made in court. That necessarily happens weeks or months after the fact. In the moment, the best you can do is say "this stop is illegal; you have no reasonable suspicion," to which the cop can simply say "yes I do." If you resist at that point, the situation is just going to get worse for you, even if the cop is lying or just mistaken. It's also important to recognize that reasonable suspicion can exist even if you are completely innocent. – phoog Nov 02 '17 at 07:29
  • Turner vs Lt. Driver: https://www.youtube.com/watch?v=eBWPpeHtdSA – Digital fire Nov 09 '17 at 19:33
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If you are not in a state with a stop and identify law (Washington doesn't have one, save for the requirement to show your license for a driving infraction), you do not have to respond. To be sure, you need to carefully check the state laws.

user6726
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