State v. Terry Griffith, 2000 WI 72, 236 Wis. 2d 48, 613 N.W.2d 72, affirming unpublished decision of court of appeals
For Griffith: Paul G. LaZotte
Issue: Whether the police lacked authority to ask the name and birth date of a passenger of a lawfully stopped car.
Holding: The police may request identifying information from passengers during traffic stops, ¶45, and though the passenger may rightfully decline to answer, ¶52, when, as here, the passenger falsely answers and otherwise resists the police, he may charged with the resulting offenses.
After the police stopped a car, they asked passenger Griffith his name and date of birth. He gave false information. He was arrested and escaped, leading to a variety of charges. His principal contention is that the initial questioning violated the fourth amendment; everything that followed was tainted by this illegal police action. Conceding that the stop was lawful, he first argues that its purpose had already been served by the time the police asked him for identifying data. The court stresses the lawfulness of the stop, critically distinguishing Brown v. Texas, 443 U.S. 47 (1979) on that basis. ¶33. Resolution of the propriety of the questioning turns on “the incremental intrusion” that this conduct added to the lawful stop. ¶38. This, in turn, depends on whether questioning went beyond the scope of the stop, and whether the questioning itself was “nonconsensual.” ¶40. The court assays the factors in favor of police questioning. ¶¶45-48 (not clear whether investigation stemming from stop had concluded; general public value to identifying witnesses to police-citizen encounter; additional interest in determining whether passenger licensed and available to drive car upon driver’s arrest). Nor was the encounter nonconsensual: all events “took place in public view,” and lasted “only a few minutes.” ¶51.The passenger could have rightfully refused to answer, without penalty. ¶52. But merely posing a question doesn’t amount to a seizure. ¶53. A stop may be unreasonably prolonged, but “the length of time required to ask a question is not sufficiently intrusive to transform a reasonable, lawful stop into an unreasonable, unlawful one.” ¶61.
UPDATE: the Illinois supreme court has since held that, “during the course of a routine traffic stop, a police officer’s mere request for identification from a passenger … passes constitutional muster.” People v. Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260 (2003). The opinion also contains a fairly detailed discussion of the “divergence of opinion among the federal and state courts as to the parameters of the Terry ‘scope’ requirement when determining the propriety of police questioning during a traffic stop. But see People v. Harris, 207 Ill. 2d 515, 802 N.E.2d 219 (2003) (clarifying Gonzalez: may not run warrant check on passenger absent reasonable suspicion or direct connection to purpose of stop); People v. Heather, Ill App. 4th Dist No. 4-02-0627, 7/04 (continuing to question driver and running warrant check on passenger after traffic stop was complete “changed the fundamental nature of the stop into an impermissible investigation of past wrongdoing”); State v. Rankin / Staab, Wash. SCt No. 72509-8, 6/10/04 (state constitution “affords automobile passengers a right of privacy that is violated when an officer requests identification from a passenger for investigative purposes, absent an independent basis for making the request”); St. George v. State, Tex App 2d Dist No. 2-03-422-CR, 8/31/04 (“an investigation of the passenger of a vehicle is not included in the scope of a mere traffic stop. … an officer must have separate reasonable suspicion of a passenger in order to request identification and check for outstsanding warrants against that passenger”); Commonwealth v. Campbell, 2004 PA Super 440, ¶12, 11/22/04 (“the police can require both the driver and the passengers in the vehicle to identify themselves during a routine traffic stop regardless of whether there is reasonable suspicion that the passengers are engaged in criminal activity”).
Contra, People v. Vibanco, Cal App No. H029524, 4/30/07; U.S. v. Soriano-Jarquin, 4th Cir No. 05-4962, 7/11/07 (“a simple request for identification from passengers falls within the purview of a lawful traffic stop and does not constitute a separate Fourth Amendment event”); State v. Smith, 683 N.W.2d 542 (Iowa 2004) (check on passenger’s ID after stop concluded didn’t amount to seizure; Smith was free to decline to cooperate). Note, too, that resolution of this dispute may turn on outcome of broader issues, such as whether police are entitled to ask questions unrelated to purpose of stop, or whether “mere questioning” is tantamount to a (prolonged) seizure.
See generally T. Fusco, Annotation, Permissibility Under Fourth Amendment of Detention of Motorist by Police, Following Lawful Stop for Traffic Offense, to Investigate Matters Not Related to Offense, 118 A.L.R. Fed. 567 (1994).
The Supreme Court’s subsequent decision in Larry D. Hiibel v. Sixth Judicial District Court, 03-3554, 542 U.S. __, 6/21/04 (neither fourth nor fifth amendment precludes arrest of a person simply for refusing to provide identification during a stop supported by reasonable suspicion) doesn’t necessarily sanction police authority to require a passenger’s identification during a traffic stop, absent reasonable suspicion. That issue is distinct from the one presented in Hiibel whose result, as the Court noted, is based on the following idea: “The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop.” Still, the case should be reviewed closely. (Indeed, Campbell, in the course of finding no expectation of privacy in identification information, deems Hiibel “instructive,” see ¶¶14-18. The implication is potentially profound: if there’s no expectation of privacy, then the acquisition of identification information through illicit means (such as unjustified detention) is at least arguably not suppressible.)
See State v. Johnson, Ariz. App. No. 2 CA-Cr 2006-0079, 9/10/07 for discussion re: “when the seizure of passengers in a vehicle, incident only to a driver’s traffic violation, terminates.”