Giving Your Name |
The following explanation applies to situations in which you’re approached by law enforcement agents who ask for your name. It does not apply when you’re asked for identification while seeking to pass through a security checkpoint—in that case you have the option of maintaining your privacy by staying away. The law is murky about security checkpoints at buildings and events. In the current political climate, judges are likely to support maintaining security at the expense of individuals’ privacy.
So, assuming that a law enforcement officer comes to you and asks for your name, whether you’re required to answer depends on:
(1) whether you’re in custody and
(2) which state you’re in.
If you’re not in custody, then you never have to give your name. This applies in every state. However, sometimes it’s a little hard to tell whether or not you’re in custody (which is defined as “not free to go”). Obviously, you’re in custody if the police have handcuffed you or ordered you to stay put. But sometimes an officer walks up and stands in front of you, or just starts talking to you…and you may not be able to tell whether it’s okay to leave. So you must ask, “Am I free to go?” If the officer doesn’t respond by clearly ordering you to stay, then you should calmly walk away without saying anything else. (See Conversation.)
If you are in custody, you may be required by law to give your name, depending on which state you’re in, and whether you’re merely being detained or have actually been arrested. 1
Some states have a law that you must give your name when you’re detained. Some states have a law that you must give your name after you’re arrested. Some states have both laws. And some states have neither. For example, the State of Nevada has a stop-and-identify law that requires you to give your name when you’re detained; 2 by contrast, the State of New York has a stop-and-identify law that merely allows an officer who detains you to ask your name, but doesn’t require you to answer. Given these variations, you should consult a local criminal defense attorney to make sure you know the requirements for your particular state. First, find out whether there’s a state law that requires you to give your name during detention or after arrest; and then ask how the Hiibel case affects the way your state’s courts interpret these laws. 3
As a practical matter, if you’re detained or arrested, you’ll usually have to give to your name to have any chance of being released promptly. Even if you’re only being detained, the police will generally hold you until they determine who you are and whether there are any warrants for your arrest. And if you’ve been arrested, you won’t be considered for release unless you provide your name and address. Nonetheless, you may choose to withhold your name on principal, which is legal in many states. Of course, you may have to remain in custody while making your point, but you’re not necessarily breaking the law by refusing to give your name.
The important thing to remember, whether or not you give your name and address, is that you should not answer any other questions at all.
1. Detention is a temporary period of custody during which the officers are deciding whether there’s a valid reason to arrest you. It often blends into arrest. (See Detention and Arrest) Under both detention and arrest, you can be handcuffed or placed in a squad car—and the police don’t necessarily announce “You’re being detained” or “You’re under arrest.” So it may be hard to tell which type of custody you’re in, without asking. 2. The U.S. Supreme Court decided that Nevada’s particular law is constitutional in June, 2004, in Hiibel v. Sixth Judicial Dist. Court, 124 S.Ct. 2451 (2004). 3. For an example of how to analyze the scope of a state’s stop-and-identify law, see When Do You Have to Give Your Name at the RNC Protests? |
