When Obstructing isn’t Obstructing

Obstructing an officer is a crime in Wisconsin.  Citizens are not allowed to obstruct an officer doing any act in his official capacity and with lawful authority.  This includes knowingly giving false information to an officer.  But what if you simply refuse to give an officer information?  What if you don’t tell an officer your name when asked?  Can you be arrested and charged with obstructing an officer?  This post examines this common question.

Obstructing in Wisconsin

The crime of obstructing an officer is found in Wis. Stat. § 946.41.  Relevant to this statute, Wis. Stat. § 968.24 codifies the law on Terry stops.  Specifically, a law enforcement officer is permitted to stop a person in a public place for a reasonable period of time if the officer believes the person has committed, is committing, or is about to commit a crime.  Further, the officer may demand that the person identify his or herself and their address.  Note that § 968.24 discusses what officers are permitted to do.  It does not require a person to comply with the officer’s request.

Wisconsin Court Cases

The leading Wisconsin Supreme Court case is on this issue is Henes v. Morrissey.  The facts from this case are that Henes was walking along a highway at 2:30 am in Oconto County.  They stopped and questioned Henes regarding a stolen vehicle in the area.  Henes refused to give officers his name and explain why he was walking on a highway at 2:30 am.  As a result, the officers arrested him for obstructing.

Henes moved to dismiss the complaint and the circuit court agreed.  While officers had reasonable suspicion under Terry and § 968.24 to stop and question Henes, they did not have probable cause to arrest him for refusing to give his name.  Remember, the definition of obstructing requires a person to “knowingly give false information.”  All Henes did was refuse to give the requested information.  The Supreme Court stated that “[m]ere silence, standing alone, is insufficient to constitute obstruction under the statute.”  Because he did not provide any information, let alone false information, he did not commit the crime of obstructing an officer.

An earlier Wisconsin Supreme Court case also held that refusing to provide officers with your name is not a crime.  In State v. Hamilton, a Kenosha officer was investigating a shooting and asked Hamilton for information.  Hamilton refused to provide the officer an information.  Police arrested him for obstructing.  The Court ruled that nothing in the obstructing statute criminalizes the refusal to provide information.  As stated previously, the statute criminalizes knowingly giving false information.

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US Supreme Court Decision

A United States Supreme Court case, Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, does permit a state to require a person to identify his or herself to law enforcement when asked.  In the Hiibel case, a Nevada state law required any person lawfully detained under Terry to identify himself.  However, the person need not answer any additional questions from law enforcement.  The Hiibel court determined that state laws requiring individuals to identify themselves is not contrary to the 4th or 5th amendments of the United States Constitution.

Therefore, the Hiibel decision permits the Wisconsin Legislature to draft a law requiring individuals to identify themselves to law enforcement when asked.  To date, however, the legislature has not created that requirement.  As a result, a person stopped and questioned by police in Wisconsin has no duty to disclose their name or answer any other questions.

Obstructing in Other States

As a result of the Hiibel decision, states can enact “stop and identify” laws and can criminalize a refusal to comply.  A great overview of the obstructing laws in other states can be found here.  Approximately half of the states have some form of “stop and identify” laws.  For example, Arizona, Indiana, Louisiana, and Nevada have laws which absolutely require a person to identify themselves.  Fifteen other states permit law enforcement to ask questions, but do not explicitly require the person to respond.

Law enforcement officers follow different requirements for requesting identifying information in different states.  Specifically, for some states, there needs to be reasonable suspicion.  For others, the person must be a witness to a violent felony.  Other states permit officers to consider a person’s refusal to provide information as a factor when making an arrest determination.

Different states handle self-identification requirements differently.  But for those of us in Wisconsin, there is no requirement that we provide police with our identifying information.  And if we do refuse to provide identifying information, that fact alone does not constitute obstructing an officer.

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Contact a top Milwaukee Criminal defense attorney

The criminal defense attorneys at Van Severen Law Office handle these types of cases every day.  If you feel that you have been improperly questioned, arrested, or detained, call us right away.  We will fight to preserve your rights.  Contact us today!

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