Kansas Stop and Identify: K.S.A. 22-2402 Carries No Penalty

K.S.A. 22-2402 is titled "Stopping of suspect" and sits in the Kansas Code of Criminal Procedure, chapter 22, article 24. Subsection (1) sets three conditions before an officer may demand anything: the person must be in a public place, the officer must reasonably suspect that the person is committing, has committed or is about to commit a crime, and the encounter must fall short of an arrest. Where those conditions are met the officer may demand the name, the address and an explanation of the person's actions. The printed text reads "may demand of the name, address of such suspect," a wording left behind when the 1990 amendment (L. 1990, ch. 106) stripped the gendered pronouns out of the 1970 original; the current text is what the Kansas Office of Revisor of Statutes publishes today.

Subsection (2) is the frisk half of the same section and is narrower than most readers expect. It permits a pat-down only for firearms or other dangerous weapons, only where the officer reasonably suspects that personal safety requires it, and it directs that anything found be returned at the end of the questioning unless possession is itself a crime or evidence of one, in which case the officer must arrest rather than simply keep the item.

The crucial structural point is what is missing. Section 22-2402 attaches no penalty clause of any kind. Compare the sections around it: K.S.A. 8-244(b), on carrying a driver's license, is enforced through the traffic code, and K.S.A. 21-5904 sets out graded penalties for interference with law enforcement running from a class A nonperson misdemeanor to a severity level 5 nonperson felony. The Legislature plainly knows how to write a penalty, and it did not write one into 22-2402.

What can be charged is giving a false answer rather than no answer. K.S.A. 21-5904(a)(1)(C) makes it interference with law enforcement to give a law enforcement officer, agency or state investigative agency "any information, knowing that such information is false and intending to influence, impede or obstruct such officer's or agency's duty," and under 21-5904(b)(2) that is a class A nonperson misdemeanor, or a severity level 9 nonperson felony in the case of a felony investigation. The Revisor's own annotation to 22-2402 records State v. Latimer, 9 Kan. App. 2d 728 (1984), where the defendant gave false identification in response to a proper request under the section. K.S.A. 21-5904(a)(4) separately makes it an offence to flee on foot from an officer who has reason to stop the person under K.S.A. 22-2402 and who has given a visual or audible signal to stop.

Behind the wheel the answer changes. K.S.A. 8-244(a) requires every licensee to have the driver's license in immediate possession at all times when operating a motor vehicle, and 8-244(b) requires the licensee to "promptly deliver such person's driver's license upon demand of any officer of a court of competent jurisdiction, any peace officer or any examiner or officer of the division of vehicles" when the licence is in immediate possession. Subsection (a) carries its own defence: no person charged with failing to have the licence in possession may be convicted if the person produces in court, or at the office of the arresting officer, a licence issued to them and valid at the time of arrest.

A separate Kansas statute constrains why an officer may stop you in the first place. K.S.A. 22-4609 makes it unlawful to use racial or other biased-based policing in constituting the reasonable and articulable suspicion needed to justify a detention or an investigatory stop of a vehicle, and K.S.A. 22-4611(c) gives a person whose complaint has been disposed of a civil cause of action in the district court against the officer, the agency, or both, with damages and possible attorney fees.

A. 22-2402(1) is not itself a listed offence, because the section contains no penalty subsection. The offences that do attach are separate ones. A. A. A. 21-6611(b)(1) by a fine of up to $2,500; where the underlying investigation is of a felony it becomes a severity level 9 nonperson felony. Knowingly obstructing, resisting or opposing an officer in the discharge of official duty is 21-5904(a)(3), a class A nonperson misdemeanor in a misdemeanor case and a severity level 9 nonperson felony in a felony case.

Fleeing on foot from an officer who had reason to stop you under 22-2402 and signalled you to stop is 21-5904(a)(4), a class A nonperson misdemeanor, rising to severity level 7 in a felony case and severity level 5 if the person discharged or used a firearm while fleeing. A. 8-244 is enforced through the traffic code. A. 22-4611(a); the Attorney General must notify the accused officer and the agency head within 10 days under 22-4611(b), and after disposition the complainant has a civil action under 22-4611(c).