Wednesday, March 29, 2017

Constitutional Q&A: The Legality of Stop and ID Procedures


By John W. Whitehead - March 29, 2017 at 07:12PM

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We are not supposed to be living in a “show me your papers” society.

Despite this, the US government has recently introduced measures allowing police and other law enforcement officials to stop individuals (citizens and noncitizens alike), demand they identify themselves, and subject them to pat-downs, warrantless searches, and interrogations. These actions fly in the face of longstanding constitutional safeguards forbidding such police state tactics.

In 2017, for example, Customs and Border Protection (CBP) agents boarded a plane at New York’s JFK Airport and demanded that all persons on board show “documents” identifying themselves before they would be allowed to leave the plane.[2] While such a demand might be legal if made to a person trying to cross the border into the United States, it plainly violates the Fourth Amendment’s ban on unreasonable searches and seizures to stop and demand identification from persons who are already legally within the country.

Government agencies insist that such stop-and-ID procedures are necessary to combat illegal immigration, especially at border crossings. But border crossings are unique circumstances in which the government may legally demand that travelers identify themselves and subject them to “routine” searches of their belongings. Nevertheless, the government has opened itself up to serious legal challenges by making the dubious claim that border agents also possess the authority to demand travelers divulge the passwords for their social media accounts and electronic devices in order to search for evidence of wrongdoing, regardless of whether agents have any suspicions whatsoever. By exploiting a loophole in the Fourth Amendment for border searches, government agents are now seeking access to virtually all digital records for the purpose of conducting criminal investigations and intelligence surveillance.

In conducting such searches, government agents not only gain access to private information stored on the devices but also to the wealth of personal information stored remotely “in the cloud” and accessible through the devices. Border agents are also targeting their demands at minorities (particularly Muslims) and journalists, filmmakers and activists who have been critical of the government in an attempt to chill First Amendment rights.[3] As a result, border searches of electronic devices increased fivefold between 2015 and 2016 and continue to rise.[4]

Such tactics quickly lead one down a slippery slope that ends with government agents empowered to subject anyone—citizen and noncitizen alike—to increasingly intrusive demands that they prove not only that they are legally in the country, but also that they are in compliance with every statute and regulation on the books.

This flies in the face of the provisions of the Fourth Amendment to the United States Constitution, which declares that all persons have the right to be free from unreasonable searches and seizures by government agents. At a minimum, the Fourth Amendment protects the American people from undue government interference with their movement and from baseless interrogation about their identities or activities.  

Unless police have reasonable suspicion that  a person is guilty of wrongdoing, they have no legal authority to stop the person and require identification. In other words, “we the people” have the right to come and go as we please without the fear of being questioned by police or forced to identify ourselves.[5] Moreover, in the absence of a court-issued warrant, all persons within the United States have the right to not be searched by government agents or forced to reveal the contents of their wallets, their mobile devices or any other personal property.

Unfortunately, far-reaching surveillance by the government and its corporate allies has contributed to a climate in which the Fourth Amendment’s robust assurance of privacy and safeguards against government overreach have been severely eroded.

From the use of license plate readers that monitor our driving habits in real time[6] to the National Security Agency’s massive collection of data about our telephone use,[7] the government is continually seeking to know all it can about our private lives and is exploiting every opportunity to expand the reach of its surveillance. This shift towards a surveillance state where our actions are constantly watched and recorded becomes more ominous with every passing day. 

Nevertheless, there are limits to what the government can lawfully do and demand in its interactions with the public. The following Constitutional Q&A provides insight into the rights of the public when faced with attempts by the government to unlawfully stop them, demand their identification, and search their belongings, both within the domestic United States and at international border crossings.

Q. WHEN ARE POLICE ALLOWED TO STOP ME WHEN I AM TRAVELING IN PUBLIC?

A. Police may approach and speak to people in public without suspecting any wrongdoing. In such instances, however, a person is not obligated to speak with the officer and is free to walk away.[8] In order for police to stop and hold a person for questioning and investigation – a so-called Terry stop – the Fourth Amendment requires that the officer have reasonable suspicion that the person is engaged in illegal activity.[9] Police may also effect an arrest which involves taking a person into custody.  An arrest is allowed by the Fourth Amendment only if there is a warrant for the arrest of the person or the police have probable cause to believe the person committed a crime. A stop that is initially a Terry stop may result in discovery of evidence by the police and, potentially, probable cause for an arrest.

Q. What is the difference between “reasonable suspicion” and “probable cause”?

A. A police officer has “reasonable suspicion” if he has reliable information indicating that a particular person may be engaged in criminal behavior.  An officer can rely upon his experiences in concluding he has reasonable suspicion, but shouldn’t rely upon hunches or prejudices.[10]  An officer has “probable cause” when he has more than mere suspicions about a person.  That is, the officer must have reliable evidence making it very likely that the person committed or is committing a crime.[11]  There are no hard and fast rules on whether particular circumstances provide police with reasonable suspicion or probable cause. Thus, police have discretion in determining whether to stop someone, discretion which may be influenced by the biases and prejudices of the officer.  It is ultimately the responsibility of the courts to make impartial, unbiased decisions on whether a police officer had reasonable suspicion or probable cause.

Q. MAY POLICE STOP ME WHILE I AM TRAVELING IN PUBLIC AND REQUIRE THAT I PRODUCE IDENTIFICATION DOCUMENTS?

A. No. Unless government agents have specific evidence that you may be involved in some criminal activity, they may not impede your freedom of movement for purposes of determining your identity. Citizens are free to roam and loiter in public places and are not required to provide police with their identity or give an account of their purpose for exercising their freedom.[12] Even when police do have sufficient cause to stop you and request your identity, they cannot require that you produce papers or documents proving your identity. You are only required to tell the officer your identity.[13]

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