Delaware's 2-Hour Stop and Identify Detention Law

The statute sits in subchapter I of chapter 19 of Title 11, alongside the warrantless arrest powers, and it has been in the Delaware Code since 48 Del. Laws, c. 304, carried forward as 11 Del. C. 1953, § 1902 and last touched by 70 Del. Laws, c. 186. Four things may be demanded and the list is closed: name, address, business abroad, and destination. The trigger is reasonable ground to suspect a crime, which is lower than probable cause but is still individualised suspicion; a demand made of somebody the officer has no such ground to suspect is outside the section entirely.

The consequence of silence is the part most often stated wrongly. Section 1902(b) attaches one and only one outcome to a person "who fails to give identification or explain the person's actions to the satisfaction of the officer": that person may be detained and further questioned and investigated. There is no fine, no misdemeanour classification, and no cross-reference to a penalty section. Delaware's obstruction and resisting offences do not fill the gap either. 11 Del. C. § 1257(b) reaches a person who intentionally prevents or attempts to prevent a peace officer from effecting an arrest or detention, or who intentionally flees from one, and makes that a class A misdemeanour, but standing still and saying nothing is neither. 11 Del. C. § 1244A(a) reaches a person who "corruptly" intimidates, influences, obstructs or impedes a law-enforcement investigation, and § 1244A(c) defines corruptly as acting with an improper purpose including making a false or misleading statement or withholding, concealing, altering or destroying a document or other information. Section 1244A(d) then expressly removes flight by a person charged with a crime and refusal to submit to arrest from the section's reach.

What is criminal is giving a false answer. 11 Del. C. § 1245A(a) makes it an offence to knowingly provide any false written or oral statement to a law-enforcement officer or agency, with intent to prevent, hinder or delay the investigation of any crime or offence, where the statement is material. Section 1245A(d) makes that a class A misdemeanour where the matter under investigation is not a felony and § 1245A(c) makes it a class G felony where it is. Giving a false name can also be criminal impersonation under 11 Del. C. § 907(1), a class A misdemeanour, where the person impersonates another and acts in the assumed character intending to obtain a benefit or to injure or defraud. So in Delaware the safe answer is either your real identity or nothing, never an invented one.

Two companion provisions change the practical shape of a stop. 11 Del. C. § 1903 lets the same officer search for a dangerous weapon any person stopped or detained to question under § 1902, whenever the officer has reasonable ground to believe the officer is in danger if that person possesses one, and lets the officer keep the weapon until questioning ends. Separately, 11 Del. C. § 1321(6) makes loitering a violation where a person prowls or congregates in a place at a time or in a manner not usual for law-abiding individuals under circumstances warranting alarm, but it then requires the officer, unless flight or other circumstances make it impracticable, to afford the accused an opportunity to dispel that alarm "by requesting identification and an explanation of the person's presence and conduct" before any arrest, and bars conviction where the officer did not do so or where a true explanation would have dispelled the alarm.

Drivers are on a different footing. 21 Del. C. § 2721(b) requires a licensee to have the licence in immediate possession at all times when driving and to display it on demand of a uniformed police officer, justice of the peace, peace officer or motor vehicle inspector. That is a genuine duty with a charge behind it, subject to one statutory defence: it is a defence if the person charged produces in court an operator's licence issued to that person and valid at the time of the arrest. Delaware has not enacted a mobile or digital driver licence statute, so there is no Delaware provision on whether handing over a phone to show a licence extends consent to anything else on the device.

Refusing to identify under § 1902 is not itself an offence, and the statute's only sanction is time: up to 2 hours of detention that § 1902(c) says is not an arrest and shall not be recorded as an arrest in any official record, ending in release or in arrest and charge. The criminal exposure sits in the neighbouring sections. Providing a false statement under 11 Del. § 1245A is a class A misdemeanour where the investigation concerns a non-felony and a class G felony where it concerns a felony; under 11 Del.

§ 4206(a) a class A misdemeanour carries up to 1 year at Level V and a fine up to $2,300. Criminal impersonation under § 907 is also a class A misdemeanour. Resisting arrest under § 1257(b) is a class A misdemeanour, and resisting with force or violence under § 1257(a) is a class G felony. Obstruction of justice under § 1244A is a class A misdemeanour in its base form, a class G felony where the person conceals, alters or destroys material evidence or creates an obstacle, and a class D felony where force, violence or physical interference is used, with exclusive jurisdiction in the Superior Court.

A driver who cannot produce a licence is charged under 21 Del. § 2721(b) but may defeat the charge by producing in court a licence that was valid at the time of arrest.