In short, it is not an “outrageous abuse of police power” to request that a person identify themselves. This, and this alone is the crux of the legal question before the Supreme Court of the United States. Not at issue is the question of whether the application of police powers in this particular case, as shown on the video, constitutes an “outrageous abuse of police power.” It is important in cases like this to avoid letting emotions be played upon by the red herring used to troll for them. If you want to get outraged at the conduct actually under question in the case before the Supreme Court, read the decision in Schmerber v. California, 384 U.S. 757 (1966)Don’t let the antisceptic treatment of the facts fool you; my Criminal Procedure professor loved to torture us on this case by challenging us to imagine the scene at the hospital where the suspect has his blood withdrawn over his objection, his arm strapped down, his body restrained, and his blood vessel “punctured,” to use the quaint term employed by Mr. Justice Black in his dissent.
But back to the case of Mr. Hiibel. If one reads the opinion of the Nevada Supreme Court in Hiibel v. Dist. Ct., 118 Nev. Adv. Op. No. 88 (12/20/2002), the only question presented in the case is, “can a person be required by law to provide identification when an officer, involved in investigation of a possible crime, requests it.” The Nevada Supreme Court found that Mr. Hiibel could be so required in a split 4-3 decision. Without going into great detail, the Court determined that the intrusion of requiring that with which we are so regularly free (our name) was minimal, and that the need for obtaining same, based upon the fact that identification is a sine qua non to determining if certain crimes are being committed, was sufficient to make requiring its provision not an unreasonable seizure, nor a violation of due process. Mr. Hiibel has appealed, and because there is dissent among the federal circuits, the Supreme Court of the United States has granted certiorari and will hear arguments. Gotta love any case which manages to obtain the personal attention of the nation’s Solicitor General.
We start our analysis with Terry v. Ohio, 392 U.S. 1 (1968), wherein the Supreme Court allowed police officers, while investigating potential criminal activity, to make brief seizures of suspects, and further allowed a pat-down search during such a stop if there was reason to suspect that the person was armed. Despite the attempt of Chief Justice Warren in the opinion to focus on the search, the fact the Court allowed the stop in the first place was itself a new point of law, and such stops are now routinely called “Terry stops.”
Although the Court has had some opportunity to further flesh out the seemingly obvious companion issue, namely, can the police officer in such a stop request and require presentation of identification, there have been some statements by the Court tangential to the issue. In Brown v. Texas, 443 U.S. 47 (1979), the Court held that an officer who did not have objective criteria substantiating his belief that the defendant was engaged in criminal behaviour could not constitutionally conduct a Terry stop. The Court was not required to answer the secondary question raised by the case as to whether the Texas statute requiring that the suspect identify himself or be subject to arrest was constitutional. In Berkemer v. McCarty, 468 U.S. 420, 439 (1984), the Court parenthetically makes the assertion that a person is not obligated to respond to questions in a Terry stop, and must be released if nothing incriminating can be determined to be occurring. For this, they rely upon a statement by Justice White in his concurring opinion in Terry (see pg. 34). Finally, there was Kolender v. Lawson, 461 U.S. 352, wherein the Court found unconstitutional a vagrancy law because of vagueness, and, thus, did not address the issue of whether the defendant could be required to provide identification to the officer making the stop. But that case did, in footnote 9 to the main opinion, note that citizens cannot be compelled to answer questions about unsolved criminal cases, citing the case of Davis v. Mississippi, 394 U.S. 721, 727 , n. 6 (1969).
I won’t describe the various federal circuit court cases addressing the point squarely, other than to note that they apparently fall on a divide between the Tenth Circuit and the Ninth Circuit (wow, what a shock that is…). Let’s just say that liberal Ninth Circuit opinions aren’t exactly found to be in harmonious vibe with the prevailing thought on the Supreme Court bench often(must really pain Justice Kennedy to have to listen to the comments from his fellow conservatives about how often his former circuit gets slapped down).
What I find quite interesting about the opnion from the Nevada Supreme Court is that it makes exactly zero mention of the Fifth Amendment. Not even the dissent mentions it. You know, the one about “nor shall be compelled in any criminal case to be a witness against himself, …” The Fourth Amendment isn’t in question at all, here, and no one even blinks an eye at this discrepancy.
Why no Fourth Amendment issue? The seizure was legal, under the standards ennunciated in Terry. There was no search. No search, no seizure, no Fourth Amendment. Period. Pretty “duh” it seems to me. Of course, it appears that on this issue the Tenth and Ninth Circuits have failed the “duh” test as well… Sometimes people in this area of the law tend to forget the distinctions between the various pieces of applicable constitutional text.
But the comments in Kolender and Davis referenced above deal with Fifth Amendment issues (no, Davis wasn’t a Fifth Amendment case, but footnote 6 was a Fifth Amendment reference). The issue is whether the police can compel any response out of a person. A statute that requires such a response in order to avoid arrest certainly provides coercion. If I’m not obligated to tell an officer what I know about a crime, even when I’m not the suspect, can I be obligated to tell the officer my name, when that information alone, combined with the circumstances of my stop, could result in my arrest?
Do I dare submit a guess as to result? I will. My suspicion is that this will be the first time a citizen will be compelled to provide police with information against his or her will. The current concern with terrorism, combined with the general retrenchment against the decisions of the Court in the 50’s, 60’s and 70’s will cause the two middle-of-the-roaders to go with the police on this one. We’ll see.
My personal opinion? I rarely give one on legal cases, but here I will. It is a sad day in our history when you can be arrested and convicted for keeping your mouth shut.