Anthony Bandiero, Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training

A roadside chat from the studio. The question comes from an officer in Minnesota who wants to know when he can demand ID from a passenger, what he can do if the passenger refuses, and whether searching the car for marijuana lets him search the people in it.

The question comes from an officer in Minnesota, and basically he wants to know, what are the legal requirements for demanding an ID from a passenger?

When can you demand ID from a passenger?

So first of all, you can demand ID if you have reasonable suspicion or probable cause that the passenger has committed some kind of violation. That does not offend the Fourth Amendment, or the Fifth Amendment, unless, strictly speaking, their identification is going to implicate the Fifth Amendment. They can invoke their Fifth Amendment privilege if they believe it’s going to implicate them. But normally we don’t have those issues, so let’s move right past that. If we do, then it gets a little more complicated. But normally, demanding the ID in and of itself is lawful.

That case is a U.S. Supreme Court case that originated out of Winnemucca, Nevada. It’s called Hiibel. I think it’s H-I-I-B-E-L. And the U.S. Supreme Court said that demanding the person’s ID under a reasonable suspicion stop was lawful.

What can you do if the passenger refuses to identify?

But the second issue is this. Where’s the so what? Okay, you demand ID because you have reason to believe they are engaged in some kind of criminal activity. They say no. The next question is the so what. Do you have a statute that prohibits that conduct? Do you have a statute, in other words, that requires a person that is stopped by police under reasonable suspicion to provide ID?

Not every state does. California doesn’t have it, and some other states don’t. Nevada does. Arizona does. And many other states. So that’s my next question for police. It’s one thing where you can demand ID without offending the Fourth or Fifth Amendment. Usually it’s an entirely different thing about what you can do about it. You know what I’m saying? It might be an empty threat, because it may not be obstruction in your state.

So for example, in California, not providing ID in and of itself is not obstruction. It does not offend Penal Code 148, because Penal Code 148 does not require identification upon being stopped by police for reasonable suspicion. Now it would for probable cause, because you got to issue the citation. But that’s just kind of weird. But a lot of states do have laws that require identification.

So that’s the first thing. Do you have reasonable suspicion or probable cause? Do you have a law that you can enforce?

Can you demand ID from a passenger if you smell marijuana?

Now let’s talk about specifically what the officer wants to know about, marijuana. He smells the odor of marijuana. It’s still illegal in Minnesota to recreationally use marijuana. So now we have reasonable suspicion that they may be engaged in possessing marijuana and so forth in a vehicle. Can we demand ID?

Well, the answer, generally speaking, is yes. All you need is a reason to believe that the passenger’s engaged in criminal activity to demand ID. So I don’t see a problem there. What if they refuse? Well, what does your state law say? Is that an arrestable offense? Then you go from there.

The officer basically implies, or says, you have to have probable cause that they have constructive possession or so forth. No, you don’t need probable cause. You need reasonable suspicion.

Does searching a car for marijuana let you pat down the passengers?

The next thing is, okay, you get them out. Can you pat them down? Well, that’s a different issue. Now the question is, do you have reasonable suspicion that a particular occupant or occupants are armed and dangerous? Are they in a gang? Are they hiding something? Furtive movements? Do you have prior histories? Are they on paper for something? Do you see a bulge consistent with a firearm or weapon? What do you see? I want to know what you see.

Just because you’re going to search a car for marijuana, in and of itself, does not give you a right to pat down people. But explain to the court. How many people on scene? How many passengers? Will your backs be turned? Is it nighttime, where you can see less stuff and there’s more criminal activity at night? Tell me why. High crime area? Give me some factors.

Does probable cause to search the car let you search the occupants?

Now the final question that the officer asks, which comes up often, and even he acknowledged that there’s a lot of debate in his department about this one, and surely there is. If we’re searching a car, does that also give us the authority to search the occupants?

And the answer is no. That’s not the rule. The motor vehicle exception only applies to motor vehicles and containers therein. But the way it works right now is that a human being is not a container for probable cause purposes.

So in order to search an occupant, and usually we’re talking about passengers here, the drivers are a little easier, because you get the inference that the driver is in control of the contents and knows about it and so forth. That’s not a beyond reasonable doubt type of inference. It’s just something that the courts will allow you to do on scene. But that doesn’t mean that the passengers are in on it too.

What is the nexus between the car and the passenger?

Now you have to articulate what’s called a nexus. Do you have a nexus between the probable cause in the vehicle and this occupant? Why do you believe these two are connected? Why do you believe that the front passenger, for example, also may have marijuana on their person? Because you smell the odor of burning marijuana, that is likely that they could have it on him, because he’s partaking in it. That’s a reasonable belief. Is the person being abnormally nervous, deceptive, evasive? Do they have a criminal history in line with this, a recent criminal history? Give me some of those factors before you start searching passengers.

Okay, that’s the rule. I also have a YouTube video on this exact topic, and I also have a free webinar called Searching Cars and Occupants that I do live. It’s also on demand. So go to Blue to Gold University and check it out.

The short version

  • You can demand ID if you have reasonable suspicion or probable cause that the passenger has committed some kind of violation. That’s Hiibel.
  • Then ask, where’s the so what? Do you have a statute that requires a person stopped under reasonable suspicion to provide ID? Not every state does. It might be an empty threat.
  • The odor of marijuana, where it’s still illegal, gives you reasonable suspicion to demand ID. You don’t need probable cause. You need reasonable suspicion.
  • Searching a car for marijuana, in and of itself, does not give you a right to pat down people. Tell me why. Give me some factors.
  • The motor vehicle exception only applies to motor vehicles and containers therein. A human being is not a container. You have to articulate a nexus between the probable cause in the vehicle and this occupant.

Did I help? Did I move the ball forward even an inch? If I did, I’ve done my job. Until next time, my friends, stay safe.

Related from Blue to Gold

This article is a lightly edited transcript of a Blue to Gold roadside chat and is for training purposes only. It is not legal advice. Check your own state law and your prosecutor before acting. Source video: Ep. #91