Do you have to answer questions from the police if they are not accusing you of wrongdoing?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

A previous post conveys that the police are required to give citizens the benefit of the doubt in potential loitering situations by asking them about their identity and purpose. Clearly, police have legal authority and legitimate public safety reasons for asking questions of people on the streets. Simply asking about someone to tell his name or show proof of identity is a perfectly legal thing for law enforcement officers to do.[i]

Some states have a specific statute requiring members of the public to identify themselves to the police.[ii] The Supreme Court has held that police can arrest anyone who does not identify himself when asked to by police.[iii] In that Supreme Court case, police were following up on a report about an assault. When the officer arrived at the scene and came upon a drunken man, he asked the man, multiple times, to identify himself but was refused every time which not only kept him from fully investigating that potential suspect, but also delayed him in pursuing other possible suspects.

The officer arrested the intoxicated man in accordance with the state’s “stop and identify” statute. The arrested man later sued the police claiming that his Constitutional rights of freedom from unwarranted search and seizure and his right not to incriminate himself had been violated. But the Supreme Court declared that stating one’s name does not convey enough information to be incriminating and that asking about identity is reasonably related to investigating a crime scene, and is not an unreasonable search.

Usually, when the police ask for people’s identification information they are seeking information not only about the names of these folks in the area but also about crimes that have been reported in the neighborhood. Collecting information by stopping people and questioning them is a basic investigative technique.

When they suspect that the person they have stopped is connected with a crime, patting him down to search for weapons is a legally permissible action for police to take. This practice was questioned and approved long ago in a Supreme Court case called Terry v. Ohio.[iv] If the pat-down search yields evidence connecting the suspect to the crime, that evidence can be used in the criminal trial against that suspect even though the police conducted the search without getting a warrant.

Routine police questioning happens when the police have set-up a system of questioning and are following that system. They could, for example, question everybody who matches the description of a suspect or everyone who might have been in that same vicinity when a crime occurred. Routinely stopping the same innocent person for questioning unrelated to an investigation would be abnormal police practice. It might even be harassment. It might be worth reporting to the police department’s disciplinary office , your local police review committee –list available from National Association for Civilian Oversight of Law Enforcement, the American Civil Liberties Union,[v] or any local homeless advocacy service for investigation.[vi]

There is quite a body of law about what happens when people get in altercations with the police.[vii] Generally, the law concludes that the police are allowed to restrain or detain people who give them a hard time because there is a risk that the scene will arouse trouble involving other people present in the area. Some have argued that if they cannot use “offensive, derisive or annoying words”[viii] against the police, their free speech has been compromised. But, the Supreme Court says that kind of communication could “incite an immediate breach of the peace”[ix] and is therefore in the category of hate speech, not protected under the First Amendment’s free speech clause.

People who do not carry identification documents, even those who used to carry identification until it was confiscated or not returned in a previous police encounter, need to remember the legal rationale for why the police ask for identification before getting mad at the officers. This is yet another legal situation in which knowledge of the law might not help someone once he gets in trouble, but can help someone to avoid getting into trouble.

Certainly, homeless people have historical and legitimate reasons to believe that if they identify themselves to police, the officers will check for any outstanding arrest warrants against them. Realizing, though, that the police are likely to be asking about identity as a way of investigating a particular person or crime or else trying to ascertain whether someone is drunk, drugged, or dangerous might lead a person to put effort into assuring the police that he is none of those and that he might even be helpful to the officers.

If the officer simply wants information and he is given that information when he asks for it, then the transaction is over. The officer has done his investigative task and now has other things to do. If the person who has been asked for the information is not or was not committing a crime, does not give the officer a reason to suspect him of existing or potential wrongdoing, and does not distract the officer from his investigative task by acting surly, there is no reason for that officer to arrest or cite him.

On the other hand, there are plenty of legal records showing that police can be abusive.[x] Some courts have held that police officers are entitled to a certain amount of lenience in controlling their tempers and actions because their work is unusually stressful and they are at constant risk of facing dangerous and uncontrolled people.[xi] The obvious counter argument has also been made; the police have more training and experience than anyone to deal with emergencies, danger, and the wide array of public behavior and therefore the public should be able to expect police to control themselves under pressure.[xii]

No matter which of these opposing perspectives a court has, it will still acknowledge that police officers are allowed to use their own discretion in judging how necessary it might be to handcuff and arrest someone who does not answer their questions while they are trying to investigate and control a situation.[xiii] Knowing that the legal system entitles police officers to use that discretion, an individual can try to get the officers’ discretion in his favor by acknowledging the broad legal context of being questioned, rather than responding as if he is being accused or criticized.


[i] Internal Revenue Service v. Delgado, 466 U.S. 210, 2116 (1984).

[ii] Find “stop and identify” statutes by looking for phrases like “interference with police” “obstructing police” “obstruction of justice” and “resisting arrest” in the state crimes code; a law against failing to identify yourself to police is likely to be included as a component of one of those crimes. Articles commenting on “stop and identify” laws include: Shelli Calland, Stop and identify statutes do not violate the Fourth or Fifth Amendments, 40 HARV. C.R.-C.L. L. REV., 251 (2005); James G. Warner, Dudley Do Wrong: Analysis of a Stop and Identify Statute, 39 AKRON L. Rev. 245 (2006). See also: What Constitutes Offense of Obstructing or Resisting Officer, 48 ALR 746.

[iii] Hiibel v. Sixth Judicial District Court of Nevada, Humboldt City, 542 U.S. 177, 124 S. Ct. 2451 (2004).

[iv] Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868. (1968).

[v] The chapters and affiliate offices of the ACLU are listed at http://www.aclu.org/affiliates/index.html

[vi] The National Coalition for the Homeless maintains a list of organizations doing homelessness advocacy http://www.nationalhomeless.org/resources/state/index.html.

[vii] Michael G. Walsh, Annotation, Insulting Words Addressed Directly to Police Officer as Breach of Peace or Disorderly Conduct, 14 ALR4th 1252 (1982). This is an article summarizing scores of cases from all over the country.

[viii] Chaplinsky v. New Hampshire, 315 U.S. 568 at 573; 62 S. Ct. 766, at 770 (1942).

[ix] Id. at 572 and 769.

[x] The American Civil Liberties Union (ACLU) has a collection of legal information about police misconduct including news reports, legal documents from court cases, legislative resources, and fact sheets available for anyone to download. https://www.aclu.org/criminal-law-reform/police-practices

[xi] There is a detailed discussion of this perspective in Pavish v. Meyers, 225 P.633 (Wash. 1924). Duncan v. U.S., 219 A2d. 110 (D.C. App., 1966) remanded on other grounds 379 F.2d. 148; City of St. Petersburg v. Calbeck, 121 So.2d 814 (Fla. App. 1960); St. Paul v. Morris, 104 N.W. 2d. 902 (Minn. 1960) cert. denied 365 U.S. 815. State v.McKenna, 415 A.2d. 729 (RI., 1980) “We believe the officers justifiably reacted in anger as any group of persons of average sensibilities would have.”; Com. v. Hock, 696 A.2d 225 (Pa. Super., 1997) “we agree with the majority of states which “can conceive of no reason why a police officer, or other public official responsible for maintaining law and order, should have to be the object of obscenities and vulgarities of the type which, if addressed to a layman, would have a direct tendency to incite him to acts of violence.” [Citing Bale v. Ryder, 290 A.2d 359 (Me. 1972)].

[xii] Chicago v. Blakemore, 305 NE2d 687 (Ill. App, 1973); People v. Slaton, 322 N.E.2d 533 (Ill. App. 1974); Swann v. Huntsville, 455 So.2d 944 (Ala. Crim. App. 1984).

[xiii] See MCQUILLIN, EUGENE, A TREATISE ON THE LAW OF MUNICIPAL CORPORATIONS 3d Ed., §45.18 (updated through July 2006) for a thorough explanation of police duties and arrest powers. Footnotes following that explanation lead to cases and statutes across the country. Note, however that the U.S. Supreme Court struck down a local ordinance that made it “unlawful for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest.” The Court held that the statute was so broad and vague that it violated the First Amendment right to free speech because almost anything that anyone might ever say to a police officer could be construed as an interruption. Houston v. Hill, 482 U.S. 41, 107 S.Ct. 2501 (1987).

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If the police come looking for you, does a shelter have to turn you over to them?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

A place of shelter is not a place of asylum from the law. On the other hand, it is also not a place where the homeless should feel at risk of being rounded-up by the police. Unless someone commits a crime in a shelter or the police come to the shelter looking for a particular person, shelter staff have no legal obligation to identify residents to police.

If the police come to question a resident as a potential witness or perpetrator, someone who prevents the officers from having access to that resident can be charged with obstruction of justice or obstruction of process.[i]

There is a whole spectrum of interactions that might occur between shelter staff and police who come looking for a resident.  At one end of the spectrum are the police with a warrant to search or seize.  They might be there to seize a person or evidence.  If they come to seize a person, the warrant is an arrest warrant.

As explained elsewhere in this blog, judges issue search and seizure warrants when police and prosecutors have given them probable cause to believe that evidence of a particular crime is located in the place to be searched.[ii] When the shelter-police interaction is at this end of the spectrum, the shelter has no choice but to comply with the police. Staff who interfere with the officers’ carrying out the warrant are blatantly obstructing justice.  They might be handcuffed and immediately arrested so they can’t continue to impede the police work.

At the other end of the spectrum is a scene in which police have heard a vague complaint about a minor offense and come to the shelter asking the staff to present all of the male residents ages twenty to forty who have blue jeans. Here the police have not conveyed that a crime has occurred or that they even know who they are looking for.  They are putting the staff in the dubious position of disrupting multiple innocent residents who came into the shelter only seeking a safe indoor place to rest.

At that point, the police might be causing the serious interference-interference with the fundamental purpose of the shelter.  The shelter staff have to do their jobs and provide the residents with a place to rest.  It would probably not be an obstruction of justice if they asked the police for more information so that fewer residents were interrupted or if they encouraged the police to come back and look for their suspect outside the building the next morning when the residents left for the day.

In between these two poles of the spectrum are numerous possibilities. Maybe a victim or a witness saw an attacker run into the shelter.  Maybe the police have been following a shelter resident as part of a major investigation.  Maybe the homeless have been crime targets and the police want to get to know them and help them avoid being victims.  The decision about whether to charge shelter staff with obstruction will depend on the police officers’ assessment of the public safety risk involved if they are hindered from getting to a shelter resident, i.e. it depends on police discretion.[iii]

There are other potential criminal charges, aside from obstruction crimes, that shelter staff can face for not identifying residents to the police. They might, for example, be harboring a fugitive. Getting between the police and a shelter resident they’ve come to arrest could be harboring a fugitive.[iv] Even when counselors at a shelter have confidential knowledge of residents’ crimes, it does not mean that those counselors can hide those clients when the police come looking for them.  They might be able to avoid disclosing clients’ counseling records for evidence, but they cannot keep the police away from those clients.[v]

Shelter staff can also have criminal liability for not identifying a resident when they know the resident is repeatedly committing a crime.  The first time a shelter worker sees a resident stealing from other residents or dealing drugs in the shelter, he has a basic citizen’s obligation to report the crime to the police.  If he doesn’t report the crime that first time, he’s not likely to be charged with a crime himself. (Although he should serve as a witness for the prosecution since he saw the illegal act.)

After the first time however, accomplice or conspiracy charges might be brought against the shelter worker who knows about a pattern of criminal behavior in the shelter but doesn’t report it to the police.  Basically, an accomplice is someone who “gave assistance or encouragement or failed to perform a legal duty to prevent”[vi] a crime.   A conspirator joins with others “for the purpose of committing…some unlawful or criminal act.”[vii]


[i] Obstruction of justice or process is defined and examined in 67 C.J.S. Obstructing Justice § 24 (2002). In the federal system, the statute against obstruction of justice/process is published in 18 USC §§ 1501-20 (2007). If local or state police are obstructed in their efforts, the state’s version of an obstruction of justice charge would apply. Find these by using the following terms in the index to the state statutes: obstruction of justice, police, interference with arrest, interference with process, and crimes.

[ii] Robert M. Bloom, Searches, Seizures, and Warrants (Praeger 2003). This book tells about every aspect of law that applies to warrants for searches and seizures.

[iii] To learn more about police discretion, See American Bar Association, Standards Relating to the Urban Police Function 1-43 (1972 & Supp. 1973). (These standards were developed by a joint committee of ABA members and members of the International Association of Chiefs of Police). Also, search in the National Criminal Justice Resource Center for the phrase “police discretion” to get links to full-text articles, reports, and book chapters on the topic. http://www.ncjrs.gov/index.html

[iv] 39 Am. Jur. 2d Harboring Criminals § 3 (2006).

[v] A related but much more extreme legal obligation arises when a mental health professional knows that a client seeks to hurt someone. When that happens, the mental health professional is allowed to divulge confidential client information to police, but only to the extent necessary to protect the client’s intended victim. To read more about this and see a comparison of state laws, see John C. Williams, Liability of One Treating Mentally Afflicted Patient For Failure to Warn or Protect Third Persons Threatened by Patient, 83 A.L.R. 3d 1201.

[vi] Black’s Law Dictionary, 6th Ed. 17 (1990).

[vii] Id. at 309.