Questioning Passengers

Mr. Lorenz,

I have been trying to figure out this question. A Texas police officer stops a vehicle and detects the odor of marijuana. Obviously, he can have the driver identify himself because of the stop, but can the officer identify the passenger solely on the probable cause that the entire vehicle smells like weed? Or does the officer need to find a violation of the passenger (I.E. no seatbelt) before he can order the passenger to ID?

Response

It is a good question and a source of confusion for many officers. If the stop is for traffic only (e.g., speeding, etc.), the officer may only conduct consensual questioning of passengers. If the officer has reasonable suspicion, the officer may question the vehicle's passengers further.

In your scenario, there is probable cause to believe the vehicle contains contraband, and the occupants (including the passenger) are suspects. To use the definition of reasonable suspicion, the officer in your scenario has reasonable suspicion that criminal activity is afoot. So a stop for speeding implicates the driver, but once the odor of marihuana is detected the passenger is implicated by reasonable suspicion. Probable cause exists to search the vehicle at that point. However, to search the passenger you would need some individualized probable cause that they might possess the marihuana.

What about "identifying" passengers? If the stop is traffic only, the officer is restricted to the consensual conversation with passengers. Once there is reasonable suspicion that criminal activity is afoot, the officer can take the conversation further. However, this is where the statute on Failure to Identify (TX PC 38.02) gets confused and misapplied by some officers. Can a vehicle passenger in your scenario refuse to provide the officer with his name, date of birth, or address without violating 38.02? Yes, they can refuse without committing a crime. They can refuse to identify themselves as long as they don't falsely identify themselves.

What if that passenger (in your scenario) provides a false name, address, or date of birth to the officer? Then that person has met the elements of failure to identify (in the weed scenario). What is crucial for the officer charging the passenger with Failure to Identify is that the officer must be able to articulate that the passenger was lawfully detained due to the investigation into the marihuana and that the passenger then provided the officer with a false or fictitious name, address, or date of birth. Tell the officer to "piss off" is not a crime. Telling the officer that his name is Tyler Durden is a crime - if the passenger is not Tyler Durden.

If you will note that refusing to provide a name, address, or date of birth [ 38.02(a) ] is only a crime if the officer has lawfully ARRESTED the person. Detention is not enough.

The passenger would not be lawfully ARRESTED in your scenario - only detained. Therefore you could only charge them under 38.02(b)(2) or (b)(3) after the give you false info.

So, if you really wanted to identify the passenger, then having an independent charge, like no seatbelt, would be ideal. If there is no traffic charge on the passenger, now you are in the reasonable suspicion territory. Maybe you have probable cause if you have some other facts in addition to the odor of marihuana.

What about the passenger's physical appearance? Bloodshot eyes, dilated pupils, or slurred speech? Then that comes back to the question of is that PC to search the passenger or the car. Do you smell burned marihuana or raw marihuana? Remember that probable cause to search means you suspect that a crime has been committed and that evidence of that crime is "still" present where you intend to search. Evidence does exist, not evidence DID exist.

The advice I give to officers in the academy in the circumstances like this is that you better be damn sure you are comfortable with what you are about to do. Are you comfortable if you have to use force to make such an arrest of a passenger if they resist you in this case? This scenario has multiple layers and involves much articulation by the officer. There is much that can go wrong here. Even though weed is still illegal to possess in Texas, there is considerably more tolerance for its possession and less tolerance for officers using force to enforce the statute.

I know that the law should not come down to politics, but offices need to understand situational awareness regarding the times we are in.

One of the first slides I show officers when teaching search and seizure is the following:

Just because you can, does not mean you should.

Sec. 38.02. FAILURE TO IDENTIFY. (a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:

(1) lawfully arrested the person;

(2) lawfully detained the person; or

(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.

(1) a Class C misdemeanor if the offense is committed under Subsection (a); or

(2) a Class B misdemeanor if the offense is committed under Subsection (b).

(d) If it is shown on the trial of an offense under this section that the defendant was a fugitive from justice at the time of the offense, the offense is:

(1) a Class B misdemeanor if the offense is committed under Subsection (a); or

(2) a Class A misdemeanor if the offense is committed under Subsection (b).

(e) If conduct that constitutes an offense under this section also constitutes an offense under Section 106.07, Alcoholic Beverage Code, the actor may be prosecuted only under Section 106.07.