On The Front Lines
Rutherford Institute Issues Legal Guidance on Police 'Stop and ID' Tactics and the Legality of Government Agents Searching Electronic Devices
Charlottesville, Va. — Responding to the government’s increasing aggression in demanding to interrogate and search American citizens and noncitizens alike who are suspected of no criminal conduct and are doing nothing more than exercising their constitutional right to travel in public, The Rutherford Institute has issued constitutional guidelines on the extent to which may police stop individuals and demand that they identify themselves. In issuing the guidelines, Rutherford Institute attorneys point out that police “stop and ID” tactics, which in some instances include attempts to search cellphones and obtain access to social media accounts, violate the inherent right of people to move from place to place without government harassment and without fear of being monitored.
“We are not supposed to be living in a ‘show me your papers’ society, and yet that is exactly the kind of oppressive climate the government is attempting to create with its ‘stop and ID’ tactics, pat downs, warrantless searches, and interrogations,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “While such tactics might start out as a so-called effort to crack down on illegal immigrants, they open the door to government agents being empowered to subject anyone—citizen and noncitizen alike—to increasingly intrusive demands that they prove not only that they are in the country legally, but also that they are in compliance with every statute and regulation on the books. These are the hallmarks of a police state.”
Although people entering the United States at border crossings may be required to provide identification, reports from around the country indicate that government agents are demanding that citizens and noncitizens alike provide identification documents at non-border areas as well, including a recent incident at New York’s JFK airport where travelers were required to provide identification before being allowed to deplane after a domestic flight. Government agents insist that this authority includes the right to engage in “stop and identify,” where police stop people on the street and demand they produce proof of their identity or explain their reason for being out in public. However, longstanding constitutional safeguards—affirmed by the U.S. Supreme Court—clearly establish that people have a right to travel and to freedom of movement under the Fourth and Fifth Amendments to the U.S. Constitution, a right that police may not restrict without reasonable grounds for believing the person stopped is engaged in criminal activity.
In providing the public with a legal framework for the circumstances in which police may stop a person and demand identification, The Rutherford Institute’s Constitutional Q&A also describes the authority of the government at national borders, where agents have additional authority to demand identification from persons and search their belongings. The Q&A points out that this border search authority is being exploited by border agents to search the electronic devices of travelers, giving government law enforcement and national security agencies access to the wealth of information persons store on the device and “in the cloud” that should be protected by the Fourth Amendment.