Don’t Say Cheese To Oklahoma Cops

The latest trend in the legal world is a facial recognition system that allows cops to take photos of individuals with their smartphones and search a database of potential suspects for identification purposes. Apparently a system that acquires images and measures the distinctive characteristics of your face is crucial to determining whether you are wanted for another offense or have a record of violence. Without this information, you are nobody.

So, two questions: If we need high-tech smartphones that capture our images to verify our identities, what exactly are Ids for? And if we don’t like the photo, can we take another?

In order to answer these questions, we must look at the law. Currently, there is no direct statutory authority that requires you to smile for the camera and expose the unique measures of the distinctive characteristics of your face when you get pulled over. However, many states have legislation that requires lawfully detained individuals to identify themselves to the police and thus, potentially say cheese for identification purposes.

The Supreme Court might be helpful in determining your future as a “police database face model.” In Hiibel v. Sixth Judicial Dist. Court, a man was arrested for failing to identify himself to a police officer. Hiibel argued that the mandatory identification law of Nevada violated his Fourth and Fifth Amendment rights. The Supreme Court disagreed, because the police had a reasonable suspicion that Hiibel was engaging in criminal activity. The Court held that a state law requiring a driver to identify himself upon demand by the police is constitutional.

This case symbolizes the extent of the identification law requirement. The Court held that identification pretty much means identifying yourself. So, it is enough to state your name for identification purposes—you do not have to show your driver’s license or ID card under the Nevada law.

Cool. But what if no state law exists?

In order for police to pull you over, the stop must be justified at its inception. And anything the cop does afterwards must be reasonably related to the circumstances that justified the stop in the first place. If a cop pulls you over for running a red light, the stop is justified. That same cop cannot decide to search your car for drugs for no reason, because he did not pull you over for suspicion of drugs. Therefore the subsequent police action is not reasonably related to the circumstances that justified the stop in the first place.

Same idea for identification—unless your identity is related to the investigation of the suspicion that justified the stop in the first place, police cannot take subsequent action to verify your identity. The police can, however, run a background check to see if there are any warrants or criminal history to maximize his own safety. The purpose of this is not to verify your identity, but purely to ensure his own safety. Once you have identified yourself by stating your name or showing your driver’s license, you have properly identified yourself and the officer cannot hold you for longer than what is reasonably necessary.

What does any of this have to do with a cop taking photos of my face?

Oklahoma does not have mandatory identification laws. And there aren’t any cases addressing this issue. But we know what it means to “identify” yourself. Cops may only take your photo so long as your identity is related to the investigation of the suspicion that justified the stop. If you are pulled over for suspicion of D.U.I. and the cop has no reasonable basis for suspecting your identity, he cannot then take your photo, put you in a database (where you will probably remain forever by the way) and measure the distinctive characteristics of your face (which I am sure is very well-formed and symmetrical) to identify you. He has no reason to suspect who you are and therefore no reason to take further action to verify your identity.

In 2007, a man in Lancaster, Pa. was arrested for obstructing justice when he refused to be photographed by a cop. 911 was called after a fight broke out between a group of men. The police investigated the scene, found no guns, and decided there was no cause for arrest. Most importantly, this man properly identified himself to the police and although he was on probation for a prior conviction, that conviction was completely unrelated. The judge agreed. The police had no right to force this man to a photograph after he properly identified himself and then charge him with a crime for refusing.

I really don’t care if a cop takes a photo of my face.

That’s fair. Some of us love the camera and photograph beautifully. But there are many reasons why the police should not take your photo for no reason. First of all, even if you have been arrested but never charged, your face still stays in the system. Indefinitely. Second, the system can give false matches. The lighting, the distance, the angle can mess with the accuracy of the results. A simple stop for going over the speed limit can quickly escalate into an arrest for robbery because the system mistakenly matched you with the face of the suspect. There is also the possibility that the system will be abused by some police, and arbitrarily used to take photos of only certain people.

So you may want to think about it again.

Really, what is important is the fact that police simply cannot do that. Unless you have been charged with a crime or consent to be photographed, the police have no right to force you to submit to a photograph.

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