Do We Really Have to Stop in the Name of the Law?


Imagine this scenario, which is based roughly on a real case that I handled. A man named Paul is walking down a city street heading to meet a friend for dinner. Paul is listening to music on his earphones and appears to be generally minding his own business. Ahead of Paul, a cop appears. As Paul walks closer, the cop says, “Hey, what is your name? Give me your ID.”

Does Paul have to identify himself and give the cop is ID?

Does Paul have a legal obligation to respond at all?

Regardless of what the law says should he respond?

As is often the case, there is not a short and easy answer. Put simply, it depends.

Depends on what you ask? Good question. A little background is helpful here. First, we do not have a general legal obligation to talk with any government official, including police officers. Second, it is helpful to think of a police/citizen encounter on a continuum. On the far-left side of the continuum we have what the law calls “consensual encounters.” This means that the police have no suspicion that a citizen has committed any crime and the citizen has no legal obligation to interact with the police officer. There may be practical reasons for the interaction, but the law does not compel us to interact or answer questions in the consensual encounter. Thus, if in the above example, the police officer that stopped Paul on his way to dinner and demanded his ID did not have any suspicion that Paul committed a crime, or was about to commit a crime, Paul would be free to simply keep walking without incurring any legal penalties.

Consensual Encounter ----------> Reasonable Suspicion ----------> Probable Cause

On the far right side of the continuum is probable cause to arrest. Probable cause refers to the amount of evidence a police officer must gather before he or she can lawfully arrest a suspect. The nuances of probable cause are beyond the scope of this blog, but it is safe to think of probable cause as a solid probably. In other words, does the evidence indicate that the suspect probably committed a crime.

However, things get murkier as we navigate the middle portion of our continuum. What happens when the police suspect someone of committing a crime, but they aren’t sure and do not have probable cause? How does the police/citizen interaction operate in these common scenarios you ask? Good question. The interaction is guided by a legal principle called “reasonable suspicion.” If a police officer has “reasonable suspicion” that a citizen may have committed a crime, the officer may lawfully temporarily detain that person for questioning. Wisconsin law provides:

After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person's conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.

Applying this reasonable suspicion test to our scenario with Paul, if the officer developed “reasonable suspicion” to believe that Paul either committed or may commit a crime, the officer is permitted to temporarily question Paul and demand his identification. Unlike a consensual encounter with the police, if Paul refuses to identify himself during this temporary investigation he could be arrested or face additional criminal penalties.

It is important to remember there are practical concerns that Paul should consider in deciding how to respond as well. First, Paul and the officer may have different viewpoints about where their interaction falls on the police/citizen continuum. What may seem like an unprovoked government intrusion from Paul’s perspective could be viewed as “good police work” from the officer’s perspective. Second, regardless of the law, and depending on the circumstances, the police officer may not be thrilled if Paul simply walks away from him or her. Should Paul simply stop for a couple seconds to see what the officer needs or should ignore the officer and risk angering the officer which could cause additional delay? Not a legal question, but a practical question that depends on the circumstances presented at the time.

Finally, Paul should remember that any dispute about the legality of a police/citizen encounter would ultimately be decided after the fact (months perhaps years) by a judge. Even if Paul believes the officer is incorrect and does not believe the officer has a right to detain and question him, he should still comply with the officer’s commands. Stated differently, we do not have a right to resist an arrest, even if it is unlawful. The law expects us to be more dignified and settle our dispute in the court of law instead of on the street.

I hope you found this blog helpful. If you have any questions regarding your rights as it pertains to interacting with the police, I would love to hear from you. Please feel free to email me at dstegall@lawtoncates.com or call me at (608) 282-6200.