Hiibel, Larry v. 6th Judicial District Court of Nevada, Humboldt County, et al.

Questions presented: Whether it is a violation of the 4th Amendment protection against unreasonable searches and seizures to require someone to identify himself when stopped by police?

BY LYDIA SARGENT, MEDILL NEWS SERVICE

On the night of May 21, 2000, a cowboy and a sheriff in the small desert town of Winnemucca, Nevada, found themselves at odds over an issue that when decided before the U.S. Supreme Court this term could affect the rights of every American.

When Sheriff's Deputy Lee Dove approached a man standing next to a parked car on Grass Valley Road, he was responding to a call from a witness who said he had seen a man hit a woman in a car driving down the same road.

The scene was suspicious to Dove. The car was parked near where the incident had been reported, there were skid marks on the gravel and inside the car sat a woman.

Dove approached the man, local ranch hand Larry Hiibel, and asked him his name. Hiibel, believing he had not broken any law, refused to give the officer his name. Hiibel told Dove what he believed was his right as an American: "I haven't done anything wrong and I don't have to tell you my name."

Dove believed, as most officers do, that knowing the identity of each person he considers suspicious is paramount to his ability to protect the public and himself from harm. Hiibel believed, as he repeatedly refused to reveal his identity, that it is his right as a law-abiding American to wander freely and without interference by the government.

However, a Nevada law says that an officer can detain any citizen, anywhere, at any time, if "reasonable suspicion" exists that the person "has committed, is committing or is about to commit a crime." The law also says that any person so detained must identify himself.

Hiibel didn't know the Nevada law and refused to give his name 11 times. Dove arrested him and charged him with resisting an officer.

At trial, Dove testified that Hiibel had appeared "intoxicated, aggressive and moody.". He also testified that he didn't know if Hiibel was wanted on an outstanding warrant.

"I went ahead and put him in handcuffs so I could secure him for my safety," Dove testified.

The justice of the peace determined that Hiibel's failure to identify himself had "obstructed and delayed" Dove as a police officer trying to do his job, convicted him of a misdemeanor offense of resisting a public officer and fined him $250 plus an administrative fee of $70.

Hiibel appealed and the Sixth Judicial District Court ruled it was "reasonable and necessary" for Dove to request identification from Hiibel because there had been a call of domestic violence and because Dove had believed Hiibel was driving under the influence. The court decided that it was "crucial for the safety of an officer and possible victims" to know the identity of a person suspected of battery, domestic violence and driving under the influence.

A divided Nevada Supreme Court affirmed 4-3.

Recognizing that the U.S. Supreme Court has not yet resolved the issue and that the federal circuit courts are split, Justice Cliff Young concluded that there is an overwhelming public interest in requiring individuals to identify themselves to officers when reasonable suspicion exists.

Young reasoned that knowing the identity of a suspect allows officers to more accurately evaluate and predict potential dangers that could arise during a stop. Young said that without the law, officers would be impeded in their jobs, especially when trying to enforce restraining orders or curfew laws for minors.

Young also said that the issue was of even greater importance today when our country is "at a war against enemies who operate with concealed identities and the dangers we face as a nation are unparalleled."

Young said that denying officers the ability to request identification from suspicious persons "creates a situation where an officer could approach a wanted terrorist or sniper but be unable to identify him or her if the person's behavior does not rise to the level of probable cause necessary for an arrest."

Young said Americans reveal their names on a regular basis to new acquaintances, business associates and shop owners without any consideration.

"Asking a suspect to state his or her name when an officer has an articulable suspicion is nominal in comparison," Young wrote.

Finally, Young said that the requirements of the Nevada law involve a minimal invasion of privacy and concluded that "reasonable people do not expect their identities-their names-to be withheld from officers."

However, in a passionate dissent, Chief Justice Deborah Agosti said the majority's decision whittled away Americans' civil liberties and "weakened the democratic principles upon which this great nation was founded."

Agosti said the majority did not provide any evidence that an officer is protected from potential violence by knowing a person's identity and she rejected the majority's position that providing a name is a not an invasion of privacy.

Agosti said that giving our names to new acquaintances or business associates, things we do out of friendship or to complete a transaction, is much different than being forced to give our name or face arrest.

"[It] is government coercion--precisely the type of government intrusion that the Fourth Amendment was designed to prevent," Agosti wrote.

Agosti accused the majority of being blinded by fear of terrorism and said that it is the duty of the courts to protect the Constitutional rights of Americans in times of fear.

"The undermining of that foundation is a harm more devastating to our country and to this State than any physical harm a terrorist could possibly inflict," Agosti said.

On Oct. 20, 2003, the U.S. Supreme Court accepted review in the case.

Only one Supreme Court case has come close to addressing this issue: the landmark 1968 case of Terry v. Ohio, which defined what are now commonly known as "Terry stops," or investigative stops by police.

The Court in Terry v. Ohio said that for an officer to make an arrest, probable cause must exist. Though it can be interpreted differently, probable cause essentially means that an officer cannot arrest someone unless it can be proven later in court that person committed, was committing, or planned to commit a crime.

After Terry v. Ohio, many states enacted new laws on car stops by police.

Many states, Nevada included, added the aspect of reasonable suspicion, something that does not exist in Terry v. Ohio.

In fact, a concurring opinion in Terry v. Ohio said "the person stopped is not obligated to answer and refusal to answer furnishes no basis for an arrest."

The Court's decision in Hiibel will either limit or expand the rights of police during Terry stops.

Two similar cases have gone before the Supreme Court, but each time the Court avoided addressing the constitutionality of requiring Americans not charged with a crime to identify themselves.

But this case is different, said James Logan, one of Hiibel's public defenders. Hiibel has not been convicted of anything other than the misdemeanor crime of resisting an officer by refusing to identify himself, so it will be hard for the Court to dispose of the case without facing the issue head on, Logan reasoned.

Conrad Hafen, Nevada senior deputy attorney general, added that until the Supreme Court resolves the issue, Nevada law enforcement is in a catch-22. Because of the Nevada Supreme Court's decision in Hiibel, police officers can arrest someone who refuses to identify themselves. Yet, the 9th Circuit Court of Appeals held in a 2002 case, Carey v. Nevada Gaming Board, that the Nevada law is unconstitutional and that a police officer can be sued for arresting someone who refuses to identify themselves.

In his petition to the Supreme Court, Hiibel said the issue needs to be resolved for both citizens and police officers.

"If there is a right to refuse to identify oneself to a police officer, no citizen of this country should spend one minute in jail for exercising that right under the U.S. Constitution," Hiibel said in his petition.

And, he said, "police officers should not be forced to put their personal fortune at risk for enforcing a law which they have sworn to uphold."

On June 21, 2004, the Court, divided along ideological lines, held 5-4 that people don't have a constitutional right to refuse to identify themselves to police.

Writing for the majority, Justice Anthony Kennedy concluded that the Nevada law, sometimes referred to as a "stop and identify" statute, violates neither the 4th or 5th amendments in requiring those stopped lawfully by police to identify themselves.

Kennedy pointed out that such statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops, and have their roots in early English vagrancy laws that required suspected vagrants to face arrest unless they gave "a good Account of themselves."

In discussing the import of its 1968 Terry opinion, the majority conceded that although it is well established that an officer may ask a suspect to identify himself in the course of a Terry stop, "it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer."

The majority answered yes, but in doing so noted that it is not the 4th Amendment itself that requires a suspect to answer questions. That requirement came from Nevada's law and the laws of other states, which the Court found to not invade a person's 4th Amendment right.

As to the 5th Amendment privilege against self-incrimination, the majority held that since Hiibel's refusal to disclose his name was not based on any "articulated real and appreciable fear" that his name would be used to incriminate him (but instead was invoked because Hiibel felt it was none of the officer's business), he was not entitled to claim the 5th.

The majority left open the possibility that in a future case, a person might refuse to provide his name because doing so would give police a link in the chain of evidence needed to convict him.

In dissent, Justice John Paul Stevens relied on that 5th Amendment concern to argue that the Nevada law is unconstitutional. Calling the police confrontation with Hiibel "clearly testimonial," Stevens wrote that surely "police questioning during a Terry stop qualifies as an interrogation, and it follows that responses to such questions are testimonial in nature." Stevens directed attention to the officer's statement that "he was conducting an investigation and needed to see some identification." Therefore, as the target of investigation, Stevens concluded that Hiibel "acted well within his rights when he opted to stand mute."

The three other dissenters relied on the 4th Amendment for their support. Writing for Justices David Souter and Ruth Bader Ginsburg, Justice Stephen Breyer argued that Terry stops can only be done within circumscribed limits, in particular those that compel responses to police questioning.

Where will it stop, Breyer asked. "Can a State, in addition to requiring a stopped individual to answer 'What's your name?' also require an answer to 'What's your license number?' or 'Where do you live?'"