That’s right. Thank God they arrested that lurking beast. He pulled off the side of the road to SMOKE A CIGARETTE! Can’t cops shoot you for smoking nowadays?
The lurking beast was not arrested for his tobacco habits. He was detained after a motorist reported that he saw Hiibel assault his female passenger, and arrested after he failed to identify himself in violation of Nevada law.
Isn’t that clear from the above?
- Rick
Yes, bricker, but msmith has a rather disturbing view of what constitutes a good reason for cops detaining you; not striking someone, but rather:
“If you are standing around someplace you don’t belong”
Oh I forgot that cops are all psychic and can immediately tell the diference between someone who is hanging out by the side of the road to take a smoke and someone who is hanging out by the side of the road so they can dump a body off.
Um…yes that would be called ‘tresspassing’ or ‘loitering’.
So let me get this straight. You think it’s perfectly acceptible to loiter aimlessly along the highway and then give attitude to the police when they ask what you are doing there?
I can’t speak for toadspittle, but until marshall law is declared and a curfew is imposed, I can “loiter” along any public highway I damn well please, and any cop that wants to give me any shit about it will get a lot more than lip in return. Criminy, mssmith537, what kind of a police state do you want to live in anyway?
People don’t have to have a reason to stand by the edge of a road. If I want to leave my driver’s license in my glovebox and walk around without any “papers” at all, am I endangering the peace in your warped little universe?
If asked by a cop what my business is standing by the side of the road, “Exercising my constitutional rights” is a perfectly acceptable response.
I never saw a response to this – I’m assuming you now understand the basis for the reasonable suspicion that served as the justification for the initial detention - the Terry stop.
As to your latest post… as long as we’re not talking about an interstate highway, where pedestrians are prohibited, you’re absolutely well within your rights to loiter or walk around aimlessly, and well within your rights to disregard any police officer’s questions and continue about your business.
However, if you’re in Nevada and the police have a reasonable suspicion that you are involved in criminal activity, they may briefly detain you to investigate, and they may require you to identify yourself. This doesn’t mean you have to carry ID - just that you must provide your name.
- Rick
No, you didn’t. And for much the same reason you declined to respond this post of mine, when I caught you with your pants down.
Shall we call it even?
I have posted a reply (admittedly overdue) in the referenced thread. Your assumption that I ignored your post in that thread because I was “caught with my pants down” is absolutely wrong. I simply missed it, and have now rectified that oversight.
- Rick
Yeah that’s real bright, genius. You give him all the ‘more than lip’ you want and then cry to us about how he violated your ‘rights’ with a crack upside your head with his nightstick.
No, it’s a smart-ass response intended to provoke a reaction. An appropriate response is ‘waiting for someone’ or ‘stretching my legs for a few minutes’.
I’m not advocating a police state. But I do recognize that the police do occassionally have to ask people questions when they are doing something that appears out of the ordinary.
One more bump to attract the attention of DSYoungEsq, because I’m genuinely curious to see if he’s found support for a Fifth Amendment application to this case…
My apologies, Rick, but I’ve been buried in gay marriage issues and re-decorating a bedroom. 
Here is my analysis.
- The Fourth Amendment is inapplicable to Mr. Hiibel’s case.
This is actually pretty simple stuff; it’s unclear to me why the courts up to this point failed to understand this. I think they get confused because the Terry case comes up and they simply fail to think that there is no applicability here.
Let’s restate in brief the facts. An officer is apprised of a possible domestic violence crime. He arrives at the scene, asks a witness for information about what is at issue, and is directed to Mr. Hiibel, who is standing beside a truck smoking. The truck is parked beside the road. The officer observes skid marks behind the truck, and the presence in the truck of a female. At what point he felt Mr. Hiibel was intoxicated is unclear, both from the opinion of the Nevada Supreme Court, and from Mr. Hiibel’s video. The officer approaches Mr. Hiibel and asks him to step to one side, then asks him for identification. After several attempts to get Mr. Hiibel to offer identification, the officer places Mr. Hiibel under arrest. The officer offers no explanation to Mr. Hiibel other than he is investigating a report of possible fighting between Mr. Hiibel and the female.
The Fourth Amendment protects against two things: unreasonable searches, and unreasonable seizures. The Amendment allows for warrantless searches and seizures, but they must be reasonable. A “seizure” includes any detention of a person by an officer under color of authority, no matter how brief. A brief seizure is allowable for purposes of investigating a possible crime, and during such a seizure, a brief search is allowable for purposes of determining if the person seized is armed (Terry).
A. Mr. Hiibel was not searched
Since Mr. Hiibel was not searched (until after his actual “arrest”, when the officer decides to force him to turn around and place his hands behind his back, spreading his feet, the issue of unreasonable search is not present. Nothing at the trial on the charge of violating NRS 199.280 involved anything taken during a search. The unreasonable search provision of the Fourth Amendment was not violated.
B. Mr. Hiibel was not unreasonably seized
Mr. Hiibel has not contested the “Terry” stop made by the officer. We have to concede that there was a “seizure” of Mr. Hiibel at the moment the officer attempted to obtain Mr. Hiibel’s co-operation is moving to one side and answering questions. Clearly, this is a “seizure” within the meaning of Terry. The seizure was pursuant to a report of possible crime. There was an articulation by the officer at trial of valid reasons, objectively measurable as well as subjective, as to why he chose to question Mr. Hiibel. The Nevada Supreme Court opinion makes no mention that Mr. Hiibel asserts the initial questioning was an unreasonable “seizure.”
Mr. Hiibel was arrested after violating NRS 171.123. He appears to be asserting that, because this statute is unconstitutional, he could not legally be charged with violation of NRS 199.280. The case is up on writ of certiorari, and I am guessing that Nevada law doesn’t allow a direct appeal in cases where a district court decides an appeal from a case before a Justice of the Peace. Thus, the issue really is, can Mr. Hiibel be compelled to offer identification to an officer who is, under the provisions of NRS 171.123, conducting an investigative stop. This means that the “arrest” is not under scrutiny, because the “arrest” was legal under the law as it exists, and only unreasonable if the law compelling a person to identify himself is unconstitutional.
Thus, Mr. Hiibel did not suffer a violation of his Fourth Amendment rights.
- Mr. Hiibel suffered a violation of his Fifth Amendment right not to be compelled to incriminate himself
The only issue here is can police compel an individual to identify himself. The issue has not been directly addressed by the courts. In Kolender v. Lawson, 461 U.S. 352 (1983), the Court was able to invalidate a similar California statute regarding vagrants providing identification on the basis that the law was vague as to what was satisfactory identification. But in footnote 9 of that opinion (id. at p. 360), Justice O’Connor states:
Justice O’Connor understands which amendment is involved (and you’ll notice that the Nevada Supreme Court, in referencing Kolender, failed to properly state which amendment was at issue in her footnote). See also the very next paragraph of the Kolender opinion.
The referenced footnote from Davis states:
Thus, the police in Davis could not consider the sweep of young blacks in Meridian to bring them in for fingerprinting a valid “investigation” because, if it was valid, the defendant had the right to refuse, a right he was not given in Davis.
Which brings us to the seminal pronouncement on the issue of self-incrimination, Miranda v. Arizona, 384 U.S. 436 (1966). This hopefully won’t be controversial, because it isn’t the “read them the rights” part of the case that is in issue. The relevant portion of Miranda is as follows:
The key point is that a suspect has the right under the Fifth Amendment “to remain silent.” This is not the same as the right to remain silent upon points which may incriminate you, but no right to resist answering questions that don’t attempt to provoke incriminating responses. This recognizes a very important concept: there is no valid reason for the police to be asking questions under a compelled interrogation that don’t seek to obtain incriminating testimony. To be a valid stop under Terry, the officer has to have articulatable reaons to stop this individual, on the assumption that the individual either is involved in a crime, or has or will be involved in one. You aren’t asking such a person for the “time of day.”
Indeed, the state in Hiibel attempted to establish a need for the law requring identification on the basis that, in the absence of identification, the ability to determine if a person was violating the law could be frustrated, such as where there were injunctions in place against being within a certain zone of a person or place. In such situations, clearly the “testimony” of one’s name would be incriminating; in the absence of the information, the officer wouldn’t be able to determine that illegal behaviour occurred or was occurring. To argue that one’s identification isn’t “incriminating,” and thus permissible to obtain under duress, is not only ingenuous, but illogical.
Is it, then, reasonable under the Fifth Amendment to compel the “testimony” of one’s identity (I’ll note simply in response to the claim that one could be compelled to produce an identifying document that Terry quite clearly would make that a violation of the right to avoid unreasonable search; what the police can’t take out of your pocket they can’t compel you to hand them)? Unlike the Fourth Amendment, which allows violation of the basic right to avoid searches and seizures where it is reasonable for the state to conduct them, the Fifth Amendment right to avoid self-incrimination is not subject to such an exception. You cannot be compelled to incriminate yourself. You can’t be compelled to do so at trial, prior to trial during arrest, or even prior to an arrest. You may, at all times, at any time, refuse to answer the questions of an officer of the law, detained or not. Thus, whether or not a court might think it “reasonable” to compel an answer under the sort of test applied by the Nevada Supreme Court (under the mistaken impression they were addressing the Fourth Amendment), there is no exception applicable no matter how reasonable sounding.
I therefore conclude that Mr. Hiibel was improperly convicted of resisting a public officer, in that the officer had no constitutional right to compel Mr. Hiibel to respond to his request for identification, and given that the Justice of the Peace did not find any other basis for concluding Mr. Hiibel had violated NRS 199.280. Is there settled law on the issue? No. But I believe that the plain meaning of the determinations in Miranda and its progeny, as quite clearly understood by Justice Brennan, preclude compelling a person to identify himself at the request of an officer.
Well said, DSYoungEsq.
You make very valid points and I have to say I agree with you. However, I see huge logistical problems. What happens if someone is arrested for a valid crime and they refuse to ever identify themself? How would they be booked in? How could they post bond? I assume he wouldn’t allow his fingerprints to be taken. How could he ever be served his charges if the police/prosecutor doesn’t know his name?
Hypothetically that person would sit in a holding cell until he gives his name, but that could also be seen as forcing a person to do so against the 5th amendment. But a person can only be held 72 without being formally charged - its a catch 22. What do you think?
The answer to this question is simple. The person would be charged under a “Doe” name, until such time as a more complete identification was obtained.
And that could be obtained by comparing fingerprints to a database, for instance; the police don’t violate your Fifth Amendment rights by taking fingerprints, blood samples, etc. See, for example, the Schmerber v. California case.
Then, of course, there is the possibility of identifying the person through the use of witnesses. For example, having the man’s neighbors view him and tell you his name. It really isn’t as hard as it seems.
By the way, I’ll note for the record that the Tenth Circuit not only has the Oliver v. Woods case referenced in the Nevada Supreme Court decision in Hiibel and alluded to by Bricker above, but also has decided that a driver can be compelled to produce a driver’s license when stopped by an officer. Obviously, the Tenth Circuit (one of the more police-friendly circuits in the land) had no trouble with the concept of forcing people to pony up identification. I’d like to say they did so after some exhaustive analysis, but they basically take the fact the Supreme Court hasn’t said you can’t as valid enough reason to say you can. That’s far from a conclusive reasoning in my books. 
There is, of course, the practical matter of not making a mountain out of a molehill. If you aren’t committing a crime, why not simply identify yourself to the officer? While technically and legally not oblidged to, I would prefer to take the path of least resistance in this particular instance.
Example - While in New Orleans, a police officer stopped my friend and me and asked us for identification. Thinking it odd for two 29 year olds to be singled out on Bourbon Street among 100s of other drunk partiers, I politely asked “what seemed to be the problem officer?” Apparently, we had fit the description of two people going around randomly punching people in the head. Now IANAL, but it seems to me that under the circumstances - being drunk, fitting the description of someone assaulting people, and being about %80-90 sure that it wasn’t me, it seems like the best course of action is to cooperate and get the police out of my hair as quickly as possible.
In the end, the objective is to not have to go to court to prove how right you are.
DSYoungEsq:
You make a good argument that the Fourth Amendment is not applicable. While I think there’s a fair contrary argument to be made, I agree with your conclusion; were on the same panel, I’d concur in the result, so I won’t waste time briefing the opposite point.
But, having read your Fifth Amendment arguments, I’m afraid they have left me cold and unmoved.
You quote a footnote in Kolender v. Lawson, 461 U.S. 352 (1983), for the proposition that Fifth Amendment rights are implicated by compelling identification. It is worth noting first that Kolender addresses the exact statue at issue here: NRS § 171.123. The Ninth Circuit, in * Lawson v. Kolender*, 658 F.2d 1362 (9th Cir. 1981), offered two independent and adequate grounds for overturning the statute: the vagueness as to what constituted identification and the violation of the Fourth Amendment. Notably, the circuit court did not discuss the Fifth Amendment, and equally notably, the Supreme Court did not even address the alternate Fourth Amendment grounds, affirming solely on the void-for-vagueness issue. Justice O’Connor’s musings in a footnote are, generously, dicta, addressing an issue not before the Court, and not even defining the issue adequately. She quotes Davis v. Mississippi: “…the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer.” But the statute at issue explicitly does not compel citizens to answers questions “concerning unsolved crimes,” or, indeed, any crimes at all.
You then go on to assert that, under Miranda, a suspect has the right under the Fifth Amendment “to remain silent.”
Yes.
Counsel seems to ignore Pennsylvania v. Muniz, 496 U.S. 582 , 110 S. Ct. 2638 (1990), which specifically carves out a ‘routine question’ exemption for questions about name, address, height, weight, eye color, date of birth, and current age. (It’s worth noting that Muniz was also asked for the date of his sixth birthday, and the fact that he didn’t know was used as evidence against him. The Muniz court held that this question and answer was inadmissible, as it elicited the incriminating fact that he was not entirely lucid, and supported the Commonwealth’s theory of drunk driving. But Muniz’s videotaped slurred answers to the other questions were admissible; the Fifth Amendment does not protect the manner or delivery of speech.) The questions permitted and excluded in Muniz thus demonstrate precisely the dividing line between questions protected by the Fifth Amendment and those permitted: a question which can elicit an incriminating response is forbidden; a question that does not is not.
For what it’s worth, the Fifth Amendment does not protect against compelling a subject to speak a phrase for voice identification purposes (United States v. Wade, 388 U.S. 218 (1967), see also United States v. Dionisio, 410 U.S. 1 (1973)), or provide a handwriting sample (Gilbert v. California, 388 U.S. 263 (1967)).
You contend that “There is no valid reason for the police to be asking questions under a compelled interrogation that don’t seek to obtain incriminating testimony.” Yet you fail to identify precisely what element of what crime Mr. Hiibel’s name would have tended to show he committed. We may speculate that an individual subject to a restraining order incriminates himself when asked for his name under circumstances that violate the restraining order; in this case, the record reflects no such circumstance. The Nevada law may well be unconstitutional when applied to a person under a restraining order, but we are not confronting that situation here.
- Rick
While I can’t say I agree with the citizen in this case (if I read the transcript right, the deputy does come right out with it, “Well, I’ve got a report that there’s been a fightin’ going on between you two tonight.”), I do have to say if an officer cannot give you a compelling reason to check your ID, don’t give it up.
The entire incident reminds me of the Ray Bradbury story, The Pedestrian. In a nutshell, a man is out taking a long walk at night and gets arrested for it. No reason given, just suspicion. Ultimately he ends up being remanded to a psychiatric institution. I view that story, along with all of 1984 as a warning. Complacency will lead to our downfall.
I’ve been stopped and questioned by the police while taking a walk at 1am more than once. At no point did the deputies find a need to check my ID, nor did they ask my name. They did, however, ask my address to verify I was indeed from the neighborhood. (One night I actually had a deputy standing in the middle of a traffic lane with his dark uniform, trying to see the northern lights. I kept having the nightmarish image of a drunk driver coming over the hill at 90MPH and killing him on the spot.)
Rick, you know better. Muniz is a Miranda case, because the defendant wasn’t Mirandized before the questions at “booking.” The issue was, “are his voluntary responses admissible when he wasn’t warned he could remain silent,” not, “can he choose to remain silent without being convicted of a crime for so doing.”
You will note, I hope, that five members of the court felt that the responses were “self-incriminating testimony,” and, thus, would be covered by the Fifth Amendment. And please note that this included Justices O’Connor, Kennedy, and Scalia. Of the four justices who disagreed, only Chief Justice Rhenquist remains on the court; even assuming Justice Thomas would join him, I think you can see where the divide might lie at present.
I will quote to you the relevant text from Justice Brennan’s opinion:
Giving your name is making an assertion of fact. You are forced to decide, “Do I lie, do I tell the truth, or do I simply keep my mouth shut.” This is precisely what the Fifth Amendment tries to protect you from. The option of staying silent is taken away by the provisions of NRS 171.123.
As for the disagreement over the Fourth Amendment/Fifth Amendment, I’ll simply say that, in all the cases where the Fourth Amendment is referenced on this or analogous issues, I’ve yet to see the court issuing the opinion address why the Fourth Amendment is involved; all such discussions simply take it for granted that is the amendment at issue without linking their discussion to any specific text. They do so, in my opinion, because they are usually faced with a “Terry” stop, during which something involving questioning occurs that is in dispute. Without stopping to think that Terry was a seizure and search case, they then take off on a discussion of the issue as if what the police do during the seizure remains a Fourth Amendment issue. This is exactly what the Nevada Supreme Court did.
I meant to add that it isn’t relevant whether or not the “testimony” being elicited is incriminating in this particular instance; we have never measured the privilege in that way when addressing the issue of pre-trial questioning.
But you do not have an absolute right to remain silent in all circumstances. You only have a right to remain silent when the factual substance of your answer might incriminate you. If there is no possible incrimination, no Fifth Amendment privilege exists. You obviously agree that testimony can be compelled after a grant of use immunity (Murphy v. Waterfront Commission), for example. So the pivotal question here is: in what possible way could Hiibel’s name have incriminated him?
The classic “trilemma” only triggers Fifth Amendment protections when the answers actually incriminate. Mr. Hiibel’s name did not incriminate him.
However, you’ve raised a point I hadn’t considered: if the deputy had Mirandized Hiibel, could Hiibel have relied on the deputy’s statement that he had a right to be silent? Under those facts, there might be some sort of due process claim: the law requires that the suspect identify himself, but he’s just been told by the officer that he has a right to remain silent.
But that’s speculation, on facts not present here. Under these facts, Hiibel’s name does not incriminate him, and he’s not entitled to Fifth Amendment protection.
- Rick
Maybe I should have previewed before my last post.
OK, you’ve got a point. While it’s true we have never measured pre-trial questioning this way, it’s also true that we’ve never measured it any other way. That is, I can’t find any case that draws the distinction you’re making. To me, the more logical approach, rather than drawing a prophylactic line in the sand, is to apply the plain language of the Constitution.
Hiibel’s case does brief the Fifth Amendment, and you may be right in your speculation about how this Court will go.
I certainly now agree that there’s a Fifth Amendment case to be made, and I didn’t see it at all before.
- Rick