ID Requests from Law Enforcement

[powerboatr]

From The Texas Law State Library.
https://guides.sll.texas.gov/protest-rights/police

Do I need to show a police officer my ID?

Texas law only requires that you show your ID to a police officer under certain circumstances. These circumstances include: after you've been arrested, when you are driving, and when you are a License to Carry holder carrying a handgun.

Texas Law

Section 38.02 of the Texas Penal Code

Creates an offense for failing to identify yourself to a police officer after you have been arrested. Creates an offense for providing false identity information after you have been arrested or detained.

Section 521.025 of the Texas Transportation Code

Requires that drivers provide their drivers license upon request from a police officer while operating a motor vehicle.

Section 411.205 of the Texas Government Code

This statute requires those with a license to carry a handgun (LTC) to display their LTC and driver's license or identification certificate to a peace officer upon request. Those with a "protective order designation" must also display a copy of the order.
(This is ambiguous,. It makes it sound like it's separate from 38.02 or 521.025 but an office must first have a reason to demand ID.
Sec. 411.205. REQUIREMENT TO DISPLAY LICENSE. If a license holder is carrying a handgun on or about the license holder's person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display: - Jay)

This is a good statement of the law as I understand it. And I agree with your comment about whether or not the officer has to justify the demand for ID. But with the penalty removed, all they can do is charge for failure to ID, which as explained below doesn't mean what most people (including cops) think it means.

They did miss the giant loophole in TTC 521.025 though. You do not need to show the officer your driver's license IF you show it to the judge in court. This is a defense to prosecution only though. There is a bigger problem with not showing the DL on a traffic stop though. If you cannot satisfy the officer as to your identity, he cannot issue you a ticket. He will have to take you immediately to jail where they will be forced to hold you until they are satisfied as to who you are.

There is a very interesting case out of Nevada, the Hiibel case, that went all the way to SCOTUS. They basically rules that the stat law is the deciding factor and Nevada did require it in that case. Texas does not in most cases.

Understanding the Law

Failure to Identify (Versus Texas)
https://versustexas.com/fort-worth-misd ... -identify/

This private attorney's website provides a detailed discussion of Texas's "failure to identify" law.

While this is a very good basic discussion of failure to ID, I would probably have added one point to it. Make sure you know when you are arrested, and it may not be when you think. In 2004, as part of the dicta in the Texas v. Kurtz case, the Court of Criminal Appeals ruled that a traffic stop is an arrest. The whole basis of their decision is that a traffic stop is an arrest and the officer was outside his jurisdiction and thus without the authority to arrest in that case. They specifically rejected the argument that a traffic stop is an investigatory detention. Based on this logic, not showing a driver's license on a traffic stop could subject you to PC38.02 failure to ID charges. The defense in TTC521.025 would not apply then.

that little paragraph above about a traffic stop being an arrest?? scary
officer can detain you with handcuffs and your not under arrest? how can they determine a traffic stop is an arrest?
thanks for the link

[srothstein]

that little paragraph above about a traffic stop being an arrest?? scary
officer can detain you with handcuffs and your not under arrest? how can they determine a traffic stop is an arrest?
thanks for the link

The whole area of detention versus arrest is a very scary thing. In this case, the logic the court used was that the law (both code of criminal procedure and transportation code) give officers the authority to arrest for for various offenses that occur in their presence or view. Nothing specifically gives them the authority to detain. Code of Criminal Procedure specifically states that a peace officer cannot arrest for traffic offenses outside his jurisdiction (as it was then - now county). The legislative intent of this was theoretically to stop officers from making traffic stops outside their jurisdiction, so clearly the legislature thought of traffic stops as arrests. They did point out that this does not mean it rises to the level an an arrest justifying a search incidental to arrest though. It makes it confusing on possible other consequences though.

What makes it even more confusing is that Texas law says all traffic offenses are class C misdemeanors. They are crimes. A peace can take you into custody and book you for almost any offense like that. In fact, the only two offenses that police may not arrest for are speeding and having an open container of alcohol in the car. In those two cases, they must offer a ticket first but can arrest if you refuse to sign it. They can arrest for any other offense, including things like not wearing a seat belt (that one went to SCOTUS who said it was OK). And they have the discretion to not arrest for anything also, with the one exception of violation of a protective order in the officers presence or view. That is the only mandatory arrest in Texas.

The problem is also the 4th amendment and its interpretation. It protects from unreasonable searches and seizures. It doesn't mention arrests, using the term seizures instead. As far as I know, all seizures were arrests and there was no such thing as an investigatory detention in the law until the famous case of Terry v. Ohio. The basics of the case are that a cop saw a guy casing a jewelry store for a robbery, stopped him and frisked him, finding a gun. The stop and search would have been illegal due to no probable cause, but the court was trying to find an excuse to support the cop. He did what most people think a cop should do, stopped a real criminal. So they decided that cops had to be able to stop people and investigate them for possible crimes if they had some suspicion they could use to justify the stop. This created the investigatory detention. It also created the frisk as a very limited search under some very specific circumstances. I have always wondered if they had foreseen how badly both of these get abused, if they would have still ruled that way.

The SCOTUS has since made rules that try to differentiate between detentions and arrests. If the police take you to a scene other than where the stop is, then it is an arrest. If the cops use shotguns and put you on the ground and cuff you, but then let you go after only a few minutes, it is still a detention. If it takes more than 2 hours it is an arrest. If it takes less than 30 minutes, it could still be a detention. And if it is in between those two, no one knows yet.

What makes it an arrest for Texas law and what makes it an arrest for federal law can be two very different things. The worst part of all this is that most cops do not understand this fully either nd cross the lines without knowing or understanding. A really good cop can justify almost anything in this area if he knows the law and can write a good report.

[03Lightningrocks]

Maybe it is where I live or maybe I am old enough that cops don't feel the need to bother me but every time I was ever asked for my DL, I was being stopped for a traffic violation of some sort. I have witnessed a couple accidents that I stopped for and was asked for ID. It never occured to me to ask if I was under arrest...LOL. That is just silly! I never thought to give a good golly darn if a cop saw my ID. I have much more urgent issues to get my underwear in a bunch over than this. I just don't really get it. Maybe if I were constantly being harassed by the police I would see it differently. If I were hanging out at some event and taking pictures and a cop walked up to me, I would simply say howdy officer, how you doing today. If he asked for my DL, I would simply say sure, and get it out. Like I said, I guess I don't get why it has to be a big deal.

[ScottDLS]

One important point to note. Identifying yourself, doesn't necessarily require producing a particular document. There is no law that requires you to carry a driver's license if you're not driving. Some people don't have a driver's license. I guess maybe if I was going to take pictures of pro ball players from a public location, I just might not bring my license.

[03Lightningrocks]

One important point to note. Identifying yourself, doesn't necessarily require producing a particular document. There is no law that requires you to carry a driver's license if you're not driving. Some people don't have a driver's license. I guess maybe if I was going to take pictures of pro ball players from a public location, I just might not bring my license.

Sounds simple enough to me. In that case I would just say "I don't have my ID on me". I don't know anyone without a DL. I live in the big city and not being able to drive would be a pretty big problem.

[powerboatr]

that little paragraph above about a traffic stop being an arrest?? scary
officer can detain you with handcuffs and your not under arrest? how can they determine a traffic stop is an arrest?
thanks for the link

The whole area of detention versus arrest is a very scary thing. In this case, the logic the court used was that the law (both code of criminal procedure and transportation code) give officers the authority to arrest for for various offenses that occur in their presence or view. Nothing specifically gives them the authority to detain. Code of Criminal Procedure specifically states that a peace officer cannot arrest for traffic offenses outside his jurisdiction (as it was then - now county). The legislative intent of this was theoretically to stop officers from making traffic stops outside their jurisdiction, so clearly the legislature thought of traffic stops as arrests. They did point out that this does not mean it rises to the level an an arrest justifying a search incidental to arrest though. It makes it confusing on possible other consequences though.

What makes it even more confusing is that Texas law says all traffic offenses are class C misdemeanors. They are crimes. A peace can take you into custody and book you for almost any offense like that. In fact, the only two offenses that police may not arrest for are speeding and having an open container of alcohol in the car. In those two cases, they must offer a ticket first but can arrest if you refuse to sign it. They can arrest for any other offense, including things like not wearing a seat belt (that one went to SCOTUS who said it was OK). And they have the discretion to not arrest for anything also, with the one exception of violation of a protective order in the officers presence or view. That is the only mandatory arrest in Texas.

The problem is also the 4th amendment and its interpretation. It protects from unreasonable searches and seizures. It doesn't mention arrests, using the term seizures instead. As far as I know, all seizures were arrests and there was no such thing as an investigatory detention in the law until the famous case of Terry v. Ohio. The basics of the case are that a cop saw a guy casing a jewelry store for a robbery, stopped him and frisked him, finding a gun. The stop and search would have been illegal due to no probable cause, but the court was trying to find an excuse to support the cop. He did what most people think a cop should do, stopped a real criminal. So they decided that cops had to be able to stop people and investigate them for possible crimes if they had some suspicion they could use to justify the stop. This created the investigatory detention. It also created the frisk as a very limited search under some very specific circumstances. I have always wondered if they had foreseen how badly both of these get abused, if they would have still ruled that way.

The SCOTUS has since made rules that try to differentiate between detentions and arrests. If the police take you to a scene other than where the stop is, then it is an arrest. If the cops use shotguns and put you on the ground and cuff you, but then let you go after only a few minutes, it is still a detention. If it takes more than 2 hours it is an arrest. If it takes less than 30 minutes, it could still be a detention. And if it is in between those two, no one knows yet.

What makes it an arrest for Texas law and what makes it an arrest for federal law can be two very different things. The worst part of all this is that most cops do not understand this fully either nd cross the lines without knowing or understanding. A really good cop can justify almost anything in this area if he knows the law and can write a good report.

Thank you
lots to unpack now

[Caliber]

My own thoughts:

You can be detained if there is reasonable articulable suspicion that a crime has been committed, is being committed, or is about to be committed.
You can be arrested if there is probable cause that you have committed a crime.
It's possible that a detention that takes longer than is reasonably necessary could be considered an arrest.
In most cases (and you are not driving), you do not have to provide ID to police unless you are arrested or you are a witness to a crime.
If you are driving and you are stopped by the police, you must present a driver's license (which happens to have your name, address, etc.).

Regarding gun carrying: We now have constitutional carry and there should be no reason why you would need to provide a handgun license to police. However, if I we're driving and was stopped by police, I would give them my DL and handgun license in the hopes that I would just receive a warning.

[03Lightningrocks]

My own thoughts:
Snip....

Regarding gun carrying: We now have constitutional carry and there should be no reason why you would need to provide a handgun license to police. However, if I we're driving and was stopped by police, I would give them my DL and handgun license in the hopes that I would just receive a warning.

Maybe I am mistaken about this but I swear I thought your having a CHL shows up when thy run your DL. Maybe not, but that was my thinking. As for receiving a warning. I have been stopped twice in the past month, once by Allen PD and once by Plano PD and both were for doing 65 in a 35. The one in Allen I had my DL in my hand when the officer came to the window. I immediately apologized and said I had sped up temporarily to merge over into the single lane the two lane road suddenly merged into. The second I had realized my wallet and cell phone,combined wallet/cell phone holder, with my license and credit cards in it had fallen out of my rear pocket in the bathroom at a Boston Market. I panicked and drove like a fool to get back to the Boston Market. When the officer approached my window, I excitedly(not faked either) told him what was going on and I simply was not thinking beyond getting back to my wallet before it was picked up and disappeared. Allen officer gave me written warning and the Plano officer said, well you need to slow down, it will only add a couple minutes to how long it takes to get to Boston Market. Plano officer said to be careful and good luck, I hope you find it. Then he walked away. No warning, no ticket. I figured I have burned two of my nine lives when it comes to tickets.

[jmorris]

My own thoughts:

You can be detained if there is reasonable articulable suspicion that a crime has been committed, is being committed, or is about to be committed.
You can be arrested if there is probable cause that you have committed a crime.
It's possible that a detention that takes longer than is reasonably necessary could be considered an arrest.
In most cases (and you are not driving), you do not have to provide ID to police unless you are arrested or you are a witness to a crime.
If you are driving and you are stopped by the police, you must present a driver's license (which happens to have your name, address, etc.).

Regarding gun carrying: We now have constitutional carry and there should be no reason why you would need to provide a handgun license to police. However, if I we're driving and was stopped by police, I would give them my DL and handgun license in the hopes that I would just receive a warning.

I'm going out on a limb here and say that we don't have Constitutional carry, that we have unlicensed carry. The law still requires you to present your LTC if asked for your ID.

[powerboatr]

My own thoughts:
Snip....

Regarding gun carrying: We now have constitutional carry and there should be no reason why you would need to provide a handgun license to police. However, if I we're driving and was stopped by police, I would give them my DL and handgun license in the hopes that I would just receive a warning.

Maybe I am mistaken about this but I swear I thought your having a CHL shows up when thy run your DL. Maybe not, but that was my thinking. As for receiving a warning. I have been stopped twice in the past month, once by Allen PD and once by Plano PD and both were for doing 65 in a 35. The one in Allen I had my DL in my hand when the officer came to the window. I immediately apologized and said I had sped up temporarily to merge over into the single lane the two lane road suddenly merged into. The second I had realized my wallet and cell phone,combined wallet/cell phone holder, with my license and credit cards in it had fallen out of my rear pocket in the bathroom at a Boston Market. I panicked and drove like a fool to get back to the Boston Market. When the officer approached my window, I excitedly(not faked either) told him what was going on and I simply was not thinking beyond getting back to my wallet before it was picked up and disappeared. Allen officer gave me written warning and the Plano officer said, well you need to slow down, it will only add a couple minutes to how long it takes to get to Boston Market. Plano officer said to be careful and good luck, I hope you find it. Then he walked away. No warning, no ticket. I figured I have burned two of my nine lives when it comes to tickets.

I know by experience, the LTC does show up when they run your plates, because it also pulls your dl number so they "know" or have an idea who is behind the wheel

last 2 times i was stopped near sulphur springs i was unarmed due to being at the VA and its a NO NO NO GO on the reservation with any firearm so we leave them at home. both times the policeman and the trooper asked about my LTC and if i was carrying. the trooper even went so far as to ask why i didn't present my LTC when i handed him my DL. i stated because i was unarmed and was not required to present LTC. funny thing is he was WOW cant carry at the VA parking lot, so you have to travel 80 something miles unarmed ???? that needs to change
he was a very pleasant young guy and i think he was testing me of sorts, we still bull about guns for a good 5 minutes afterwards and you know gun guys love to talk

the last time i was stopped at a bit after 3 am in winnsboro, i was unarmed, because i was still sleepy when i took grand child to work at the creamery
policeman also made comment about LTC and if i was armed, as part of his lets make sure everyone is safe at 3 am program. i dont blame him
sat morning at 3 am ..odds are the guy he just pulled over is drunk, or worse. i was 5 over the 50mph limit leaving town, 65 sign was about 100 feet in front or me

i try to be polite until i am not, which us usually dictated by how the officer behaves.
all 3 no ticket.

[The Annoyed Man]

I actually got pulled over on Wednesday last week, on my way to work, by a Fort Worth motorcycle officer for speeding (51 in a 35) down the downhill westbound side of the White Settlement Rd bridge over the railroad tracks. I didn’t even think about it for a minute, and just automatically handed over both TDL & LTC. The officer asked me if I was carrying. I answered in the affirmative. He asked where. I said left hip OWB. He said to just try and keep my hands where he could see them and we’d be fine. I said Roger that. He came back to my window with a warning (even though he had me dead to rights on LiDAR), suggested I be more careful watching my speed through there, and wished me a great day. I thanked him for making it only a warning, and we went our separate ways. Total elapsed time: not more than about 3 minutes, no muss, no fuss.

Earlier this week, I fingerprinted a Dallas County prosecutor for his LTC, and we talked for a minute about LTC versus Constitutional Carry. He told me that he’s seeing a fair number of prosecutions in Dallas county of people carrying without a license, and for dumb reasons—like they didn’t know the law still requires use of a holster, and the accused had stuffed an upholstered pistol in the front of their pants. I got the sense from the conversation that at least some of them were on a path to becoming prohibited persons anyway, or that these were tack-on charges.

Whichever it was, it seems like there are a lot of people who don’t know what is/isn’t permitted under "permitless" carry…let alone what is/isn’t allowed under LTC.

[4t5]

IMO this is a poorly written piece of TX PC. They could have added one word and made it crystal clear.

Sec. 411.205. REQUIREMENT TO DISPLAY LICENSE. If a license holder is carrying a handgun on or about the license holder's person when a magistrate or a peace officer **LAWFULLY** demands that the license holder display identification, the license holder shall display:
(1) both the license holder's driver's license or identification certificate issued by the department and the license holder's handgun license; and
(2) if the license holder's handgun license bears a protective order designation, a copy of the applicable court order under which the license holder is protected.