Gas station faux legal advice – it is a thing and I don’t know how many times I have heard Joe Schmo in line “informing” the impatient crowd of their rights… or what about the endless legal advice floating through Flathead Facebook groups! I have touched upon this in another blog posts, but trust me folks, gas station legal advice, Facebook shared posts, these do not equate to speaking to an actual attorney about your constitutional rights and your rights under Montana law. Which brings me to the topic of today: Terry stops, and I am not referring to just getting pulled over by an officer while driving.
When you’re out in public, may an officer just stop you and request identification? In short, absent particularized suspicion, no. If an officer asks for your identification, always ask, “why?” They may very well have articulable facts to justify stopping you on a walk, but they need to be able to verbalize these. U.S. Const. amend. IV and Mont. Const. art. II, § 11 prohibit unreasonable searches and seizures. Because of this, government searches and seizures, absent an exception, generally require a search warrant be issued based on probable cause. Such a seizure can occur when a police officer restrains a person’s freedom based upon the totality of the circumstances. City of Missoula v. Kroschel, 2018 MT 142, P1.
A recognized exception to this warrant requirement is the temporary investigative stop, otherwise known as the Terry stop. See United States v. Terry, 392 U.S. at 16, 88 S. Ct. at 1877 and 46-5-401 and -403, MCA. Under this exception, a law enforcement officer may briefly stop and detain a person for investigative purposes without a warrant or probable cause for an arrest if, based on specific and articulable facts known to the officer, the officer has an objectively reasonable, particularized suspicion that the person is engaged, or about to engage, in criminal activity. City of Missoula v. Kroschel, 2018 MT 142, P11; citing State v. Elison, 2000 MT 288, ¶ 15, 302 Mont. 228, 14 P.3d 456; Roberts, ¶ 12; Reynolds, 272 Mont. at 49-50, 899 P.2d at 542; State v. Gopher, 193 Mont. 189, 193-94, 631 P.2d 293, 295-96 (1981); Cortez, 449 U.S. at 417-18, 101 S. Ct. at 694-95; Terry, 392 U.S. at 16-19, 88 S. Ct. at 1877-79. See also §§ 46-5-401(1) and -403, MCA.
In sum, officers are only allowed to request identification from you or those around you if they have reason to believe a crime is, was, or is about to be committed. If the officer fails to give you a reason as to why they want your identification, ask if you are free to leave, and if you are, go on your merry way. Were you subject to an impermissible stop that ultimately resulted in your arrest? Contact the attorneys at diStefano & Mattingley, PLLP today to set up an appointment… because legal advice is best given by someone that actually knows what they are talking about.