Supreme Court to Decide Mandatory Identification Case

[R. A. Hettinga]

<http://www.nytimes.com/2004/03/22/politics/22CND-SCOT.html?amp;ei=5062&en=d465b07e1cd628ee&partner=GOOGLE&ex=1080622800&pagewanted=print&position=>

The New York Times

March 22, 2004

Supreme Court to Decide Mandatory Identification Case
By LINDA GREENHOUSE

ASHINGTON, March 22 - A Nevada rancher's refusal four years ago to tell a
deputy sheriff his name led to a Supreme Court argument today on a question
that, surprisingly, the justices have never resolved: whether people can be
required to identify themselves to the police when the police have some
basis for suspicion but lack the probable cause necessary for an actual
arrest.

The answer, in a case that has drawn intense interest from those who fear
increased government intrusion on personal privacy, appeared elusive.

"A name itself is a neutral fact" that is neither incriminating nor an
undue invasion of privacy, Conrad Hafen, Nevada's senior deputy attorney
general, told the court in defense of a state statute that requires people
to identify themselves to the police if stopped "under circumstances which
reasonably indicate that the person has committed, is committing or is
about to commit a crime."

Justice David H. Souter told Mr. Hafen, "It's a neutral fact that I'm
wearing a pinstripe suit." But, he added, if someone who had just robbed a
bank was reported to be wearing a pinstripe suit, that fact, if reported to
the police, might no longer be so neutral.

The Bush administration joined the state in defending the statute.

Lawyers for Larry D. Hiibel , who was appealing his conviction for
violating the Nevada law, raised two constitutional challenges to the
identification requirement: that it amounts to an illegal search under the
Fourth Amendment, and that it compels self-incrimination in violation of
the Fifth Amendment.

The Nevada Supreme Court upheld Mr. Hiibel's conviction, a misdemeanor, and
rejected his constitutional challenge to the state law. Standing by the
side of his pick-up truck on a rural road, he had been approached by a
sheriff's deputy who was investigating a passing motorist's report that a
man in the truck had been hitting a woman. The woman in the passenger
compartment was Mr. Hiibel's adult daughter.

The deputy sheriff, Lee Dove, asked Mr. Hiibel 11 times for identification.
Mr. Hiibel, saying he had done nothing wrong, refused to give his name and
challenged Mr. Dove to arrest him. Eventually, the deputy complied. A
videotape of the incident, captured by a camera in the squad car, is on Mr.
Hiibel's Web side, www.hiibel.com. Mr. Hiibel was never charged with any
criminal offense beyond his refusal to identify himself.

A landmark Supreme Court ruling in 1968, Terry v. Ohio, gave the police the
authority to briefly detain, question and conduct a pat-down search of
someone whose activities - casing a Cleveland storefront, in that case -
gave rise to "reasonable suspicion," short of probable cause for a formal
arrest. There is no dispute that the encounter between Mr. Hiibel and
Deputy Dove was a "Terry stop" within the meaning of that decision. The
dispute in Hiibel v. Sixth Judicial District Court, No. 03-5554, is over
Mr. Hiibel's response, or lack of response.

Nevada's deputy state public defender, Robert E. Dolan, told the justices
that while the deputy "certainly had the right to ask" Mr. Hiibel for his
name, "equally so, Mr. Hiibel had the right not to respond."

Justice Antonin Scalia was openly skeptical. "What is the meaning of
Terry?" he asked. Did Mr. Dolan mean that the police were "allowed to ask
questions but shouldn't expect answers?"

Yes, the public defender replied; the state should not be permitted to
criminalize silence or to "extract data from a person."

Justice Stephen G. Breyer appeared to agree, suggesting a rule under which
the police can ask but the citizen does not have to answer. "Everyone can
understand that," Justice Breyer said, adding, "Why complicate this thing?"
Several Supreme Court decisions over the years have suggested such a rule,
but there has never been a formal opinion to that effect.

One of the Fourth Amendment questions in the case is whether a person's
refusal to answer a seemingly benign identity question can convert a police
officer's "reasonable suspicion" into probable cause to make an arrest.
Only Justice Scalia appeared to endorse that prospect. "I would think any
reasonable citizen would answer," he observed.

One of the many wrinkles in the case is that once a person is actually
arrested, the right to remain silent is guaranteed by the Fifth Amendment.
To that extent, a person who falls under a lesser degree of suspicion may
be seen as having less constitutional protection. Another wrinkle is that
there is no claim that the police cannot run a check on a license tag or -
if the suspect is driving - ask to see the driver's license. In this case,
Mr. Hiibel's daughter was behind the wheel, Mr. Hiibel was outside the
truck, and the case was not treated as a traffic investigation.

As a matter of Fifth Amendment analysis, one question is whether giving
one's name is sufficiently "testimonial" to invoke the constitutional
protection against self-incrimination. "The question, it seems to me, is
whether a name itself has intrinsic testimonial consequences," Justice
Anthony M. Kennedy told Mr. Dolan, the public defender.

If it did not, Mr. Dolan replied, "the government could require nametags."

In briefs filed with the court, civil liberties groups warned that a
rejection of Mr. Hiibel's claim to privacy in this case could open the door
to such measures as national identification cards. One group, the
Electronic Privacy Information Center, said that government databases are
now of such "extraordinary scope" that "systems of mass public
surveillance" could result from a ruling that authorized "coerced
disclosure of identity."

But the justices appeared eager to avoid a broad ruling and to confine
their eventual decision to the specific context of a suspected crime.
"We're all concerned about national ID cards and all that kind of stuff,"
Justice John Paul Stevens said at one point.


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R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
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