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I watched a YouTube video recently which depicted the following situation, and I'd like to learn more about what peoples' rights are and what an officer's obligations are in a situation like this:

A filming crew flew a drone above property to photograph a private business operation.

The security for that private business followed the filming crew down the road, and soon a police vehicle showed up, passed the security vehicle and pulled over the crew.

The initial encounter went as follows:

Officer: "Good morning folks, (identification), just trying to- had some people ask questions why you're flying a drone over their property."

Driver: (silence)

Officer: "You guys got any ID on you?"

Driver: "Why am I being stopped?"

Officer: "You're being stopped because people identified your vehicle as flying a drone over the top of their property and we're just trying to figure out what you guys are up to."

Driver: "That's illegal?"

Officer: "Well they just wanted to know who you were, they couldn't identify who you were. Do you guys have any identification on you?"

Now, the easiest thing to do here is obviously show ID. But my question is: Has the officer fulfilled the conditions necessary in order to demand ID at this point?

My concern is this: The officer could be friends with the owner of the facility they were photographing and helping his pal out by going get the name of the people photographing their operation. The law (in most US states) states that an officer can only demand you show ID if you're suspected of committing a crime. Right? That's to keep officers from being able to pull over and annoy anyone they don't like or have a personal or monetary motive to harass. Right?

So it seems to me the officer couldn't identify a specific crime the driver had broken, and would be required to name the specific law broken. But I don't know that for sure, which is why I'm here. Is the officer obligated to name the specific law the driver broke before demanding ID, if the driver requests to know which law they broke?

To continue the transaction where it left off:

Driver: "So because they wanna know who we are, you're going to tell them?"

Officer: "Well I'm just going to ask you- I'm asking if you have any identification."

Driver: "I do. What crime am I suspected of committing?"

Officer: "Well, I'm just asking to see your identification Sir. I'm trying to identify you.

Driver: "I'm telling you no."

At this point the officer has failed to name a specific law the driver is suspected of breaking. Does he need to in order to demand ID? The officer doesn't seem to know what law he suspects the driver of breaking, so he goes back to his squad car and presumably investigates. He claims to speak to his supervisor. Presumably, at this point the supervisor would look up a specific law to suspect the driver of breaking right? So it seems to me like the officer has two options: Return to the vehicle and say

"You've been suspected of X (specific law broken) crime, I need to see your ID"

or

"You're free to go".

Anyway, that doesn't happen. The detainment goes on for an hour and the driver continues to request to know what crime he's suspected of and refuse to show ID until the officer identifies the crime he's suspected of committing. At one point another officer even states "There is no crime." in response to the driver asking "Why can't you tell me what the crime was?" This continues until the officers place the driver and passengers under arrest and bring them to jail.

I see these kinds of videos often, and often times its clear the driver is just trying to cause unnecessary drama, but in a few cases, like this one, it seems to me like the driver is genuinely trying not to forfeit rights designed to protect citizens from harassment.

I'm no legal expert though, and I'm not claiming to be right. I'm asking for an expert explanation of what rights a person has in this situation, what obligations the officer has, and whether or not this encounter was ultimately a legal / illegal detainment and arrest.

  • Seems like one more police effort on drones, and the police implementation of no-fly zones. At this point in the law, it seems that the drone pilot has a right to be flying (in most situations) and the police will use police power to intimidate pilots to go elsewhere, or in this case find out who is filming for a private concern. – mongo Sep 30 '17 at 1:35
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There are a variety of situations like border crossings, entry into official buildings, etc. in which there is a general right for law enforcement to demand identification on a suspicionless basis, none of which seem to apply in this case.

But, the most common justification for demanding ID is to make what is called a Terry stop (after the name of the U.S. Supreme Court case that upheld the legality of these stops in the face of 4th Amendment limitations on searches and seizures). Wikipedia accurately summarizes the law in this area as follows. A Terry stop is:

a brief detention of a person by police on reasonable suspicion of involvement in criminal activity but short of probable cause to arrest.

The name derives from Terry v. Ohio, 392 U.S. 1 (1968), in which the Supreme Court of the United States held that police may briefly detain a person whom they reasonably suspect is involved in criminal activity; the Court also held that police may do a limited search of the suspect's outer garments for weapons if they have a reasonable and articulable suspicion that the person detained may be "armed and dangerous".

To have reasonable suspicion that would justify a stop, police must be able to point to "specific and articulable facts" that would indicate to a reasonable police officer that the person stopped is, or is about to be, engaged in criminal activity (as opposed to past conduct). Reasonable suspicion depends on the "totality of the circumstances", and can result from a combination of facts, each of which is by itself innocuous.

The search of the suspect's outer garments, also known as a patdown, must be limited to what is necessary to discover weapons; however, pursuant to the "plain view" doctrine, police may seize contraband discovered in the course of a frisk, but only if the contraband's identity is immediately apparent.

In some jurisdictions, persons detained under the doctrine of Terry must identify themselves to police upon request. In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), the Court held that a Nevada statute requiring such identification did not violate the Fourth Amendment's prohibition against unreasonable searches and seizures, nor, in the circumstances of that case, the Fifth Amendment's privilege against self incrimination.

New York is one of the many states that has a stop and identify statute, that allows an officer to insist on presentation of an identification any time there is a legal basis for making a Terry stop. The New York stop and identify statute is N.Y. Crim. Proc. Law §140.50. This says:

1. In addition to the authority provided by this article for making an arrest without a warrant, a police officer may stop a person in a public place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.

2. Any person who is a peace officer and who provides security services for any court of the unified court system may stop a person in or about the courthouse to which he is assigned when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.

3. When upon stopping a person under circumstances prescribed in subdivisions one and two a police officer or court officer, as the case may be, reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons.  If he finds such a weapon or instrument, or any other property possession of which he reasonably believes may constitute the commission of a crime, he may take it and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.

4. In cities with a population of one million or more, information that establishes the personal identity of an individual who has been stopped, questioned and/or frisked by a police officer or peace officer, such as the name, address or social security number of such person, shall not be recorded in a computerized or electronic database if that individual is released without further legal action;  provided, however, that this subdivision shall not prohibit police officers or peace officers from including in a computerized or electronic database generic characteristics of an individual, such as race and gender, who has been stopped, questioned and/or frisked by a police officer or peace officer.

In this particular case, if the law enforcement officer were more clever, he would have said that he was concerned that the crew might be using the drone to case the property in order to commit a crime there in the future. And, if he had said that, this would surely pass muster for reasonable suspicion for a Terry stop and would have provided a legal justification for demanding ID.

The "about to commit a crime" justification for a Terry stop makes it, in practice, much broader than probable cause for an arrest, which requires that the police believe that a crime has actually already been committed or is in progress, not just that someone is about to commit a crime (a person may be subjected to a Terry stop even if his actions which tend to show he is about to commit a crime have not yet progressed to the level of an attempted offense for which someone may be convicted and are not truly imminent).

(Actually, strictly speaking, the officer is only entitled to determine the information that an ID would reveal, and not to insist that someone actually have the ID on his person, under state law, although a local ordinance or court interpretation of the law could possibly give him the authority to actually demand an ID to determine this information. For example, California courts have held that a duty to provide basic information implies a duty to provide it in a verifiable manner.)

The fact that the law enforcement officer failed to articulate any legal basis for the stop, yet went on to arrest the individuals, weakens the case that the stop was valid considerably, because generally, at least in theory, a law enforcement officer is supposed to be able to articulate the reasonable suspicion for the stop at the time that the stop is made and not days later after the fact.

In addition to stop and identify laws, some states (including Colorado) have held that failing to provide an ID on demand, under the "totality of the circumstances" can sometimes constitute obstructing a police officer and provide a basis for an arrest. It isn't inconceivable that a law enforcement officer in this situation could make that argument and prevail at least in showing probable cause for arrest on that basis, even if it wasn't a sufficiently solid argument to give rise to an obstructing a police officer conviction.

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    The officer is supposed to be able to articulate a reasonable suspicion - but I don't see any requirement for him to actually explain it to the suspect. Suppose he instead radioed his suspicions to headquarters as he made the stop, or wrote them in his notebook. That would seem to satisfy Terry, and he would apparently be justified in demanding ID without giving the suspect any explanation at all. – Nate Eldredge Jan 12 '17 at 15:10
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    True to some extent. But, it seems highly likely in this case that the officer simply didn't have a reasonable suspicion to communicate. – ohwilleke Jan 12 '17 at 20:04
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The New York law involving identity is in §140.50 and reads as follows:

In addition to the authority provided by this article for making an arrest without a warrant, a police officer may stop a person in a public place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.

However, it just says the officer "may demand" a name and address. It does not say the person must provide it. Furthermore, there is no penalty listed, so the statute really is just outlining what a police officer can do, not what a private person must do. Also, since no NY misdemeanor is involved, the police do not even have the right to demand identification information at all, so theoretically the individual could complain about the officers conduct.

So, the short answer to your question is that the person does not have to provide his name and may remain silent.

The regulations involving drones are federal regulations, not laws, so not only does a state police authority have no right to enforce those regulations, but even federal authorities have no right to arrest in this situation because they are only civil regulations, not criminal laws.

The FAA has been pressuring local police departments to collect identification information in drone cases and then forward that information to the FAA. Obviously, such unofficial collaboration has no lawful basis and a private person has no duty whatsoever to cooperate with such illegitimate requests.

  • If the statute had said "may ask" this interpretation might be reasonable. But, "may demand" implies a duty to provide the information, and failure to do so would probably be a basis for continued detention and for an obstruction of a police officer charge. Also, for the purpose of the Terry stop statute, a federal regulation clearly is a law, and there is no doubt a federal FAA statute that prescribes a penalty for violating an FAA regulation which may very well be criminal. But, honestly that is a side issue, because the officer could believe that the drone users are about to commit a crime. – ohwilleke Jan 12 '17 at 20:08
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    @ohwilleke: As a practical matter, how the hell does anyone (including a police officer) possess the power to predict whether someone might commit a crime in the future? It sounds like freaking future crimes from some sci-fi movie like Minority Report or something. A wise man once said... “It's tough to make predictions, especially about the future.” ― Yogi Berra. This type of nonsense seems to leave the door wide open to manipulation and word play by clever and creative police officers: I think you might do X. – Mowzer Jan 14 '17 at 3:35
  • @Mowzer The law assumes in all sorts of contexts that people can predict whether someone might commit a crime in the future. Police making stops, judges setting bonds and deciding to permit probation, parole boards deciding whether to release someone, psychiatrists deciding on three day holds and releases from incarceration following a successful insanity plea, etc. Impossible or not, people routinely get paid to do it, and it isn't impossible, just not perfectly accurate. The law manages by calibrating the consequences of inaccuracy. Manipulation is expected, it's about appearances. – ohwilleke Jan 14 '17 at 18:11
  • @ohwilleke: All the examples you gave except "police making stops" involves someone who was already at least accused of committing a crime in the past. So they are not analogous. I think giving the power to "predict" whether someone (not already accused of criminal behavior) might commit a crime in the future is a seed for rife abuse. Police interact with the general public at large. So anyone is subject to a police officer saying: "I saw you looking at that person/building/car etc. for a longer-than-usual time. So I thought you might be planning to attack/rob/steal it etc." – Mowzer Jan 14 '17 at 18:27
  • @ohwilleke: "Mr. Marks, by mandate of the District of Columbia Pre-Crime Division I’m placing you under arrest for the future-murder of Sarah Marks and Donald Dubin that was to take place today, April 22, at zero-eight-hundred hours and four minutes." Source Marks: "But I didn't do anything!" Officer: "Tell it to the judge." – Mowzer Jan 14 '17 at 18:48

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