In a 5-4 decision the Supreme Court decided to hold the door open to State sponsored invasion of privacy. Many libertarian critics are worried that this case could lead to national ID cards or some other form of compulsory identification. Justice Kennedy, writing for the majority of Kennedy, Scalia, Thomas, O'Conner, and Rehnquist, points out that "this case concerns a different issue...the source of the legal obligation arises from []state law, not the Fourth Amendment." (p. 8). Is there a cause for concern? Possibly, but I think there are bigger problems with this decision which I will address.
The factual background of the case essentially is that a Nevada sheriff responded to a telephone call reporting an assault. The caller reported seeing a female in a red and silver GMC truck on Grass Valley Road. The sheriff went to that area and saw a truck parked at the side of the road. A man was standing by the truck, and a young woman was inside the truck. The gravel looked as though the truck had come to an abrupt stop. Bingo. (p. 1)
Officer approaches the man and asks him for his name. Not gonna tell you. Tell me your name. No. I'm conducting an investigation and need your name. Nope. This goes on until the officer asks for the 11th time. (p. 2)
At that point he officer placed him under arrest for "willfully resisting, delaying, or obstructing a public officer in discharging or attempting to discharge any legal duty of his office." In violation of Nev. Rev. Stat. Sec. 199.280(2003. Hmm. (P. 2).
The Nevada Statute in question for this case is actually Sec. 171.123 which provides,
1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing, or is about to commit a crime.
3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of the peace officer."
Hiibel challenged this "stop and identify" law based on the Fourth and Fifth Amendments. (p. 3).
The initial stop was basically a Terry stop. If there is some suspicious behavior afoot a police officer has the right to question you so long as it does not become an unconstitutional seizure. (p. 6). Terry v. Ohio, 392 U.S. 1 (1968). To ensure that the resulting seizure is constitutionally reasonable, a Terry stop must be limited and cannot continue for an excessive period of time, or resemble a traditional arrest. Terry at 20; United States v. Place, 462 U.S. 696, 709 (1983); Dunaway v. New York, 442 U.S. 200, 212 (1979).
As Kennedy points out, "[o]ur decisions make clear that questions concerning a suspect's identity are a routine and accepted part of many Terry stops." (p. 7). That is the key point. Questions are perfectly acceptable but requiring answers is something completely separate.
In Terry, Justice White claimed that a person detained in an investigative stop can be questioned but is "not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest." 392 U.S. at 34. (p. 8) This is why Miranda warnings are not required during Terry stops. They are not at the level of a complete seizure.
The Court dismisses these because the obligation to answer the question does not rise from the Fourth Amendment but rather the Nevada State law.
The Fifth Amendment argument is also dismissed with faulty reasoning. It cannot be danced around in the same way because the Fifth Amendment has been applied to the states. See Malloy v. Hogan, 378 U.S. 1, 6 (1964). Basically the court concludes that there is no danger of self-incrimination because giving your name "present[s] no reasonable danger of incrimination." (p. 11). That is, of course, crap.
As Justice Stevens points out in his dissent, these people are asked to identify themselves because they are suspects of criminal activity. (Dissent p. 1) The officer stopped and noticed the skid marks on the gravel because someone called in about a possible assault. When a person is under criminal investigation that person has every right to remain silent. This applies whether a person is in the courtroom, at the police station, sitting in their bedroom, at the grocery store, or walking on the sidewalk down the street.
The majority claimed that this is not incriminating. Again, they are wrong and they are engaging in intellectual dishonesty. Instead of admitting how broad the court has made "incriminating" statements, they choose to ignore the precedent. As Stevens quotes, "it has long been settled that the Fifth Amendment's protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence." (Dissent p. 5); United States v. Hubbell, 530 U.S. 27, 37 (2000).
As Stevens says, why else would an officer request the identification of a criminal suspect if not to furnish a link in a chain of evidence needed to prosecute him? (Dissent p. 5). If he just wants to be polite and have a name to call him the officer could furnish Joe or Jane to suspects who don't want to disclose a name. If Joe or Jane isn't good enough the officer can be creative and use fun names like, "One Eyed Willy."
Either this is a useless law that just wants to get our names out of us or it was passed to be useful in criminal investigations. While common sense would tell you that there is some use for it, I suppose that legislatures often enact stupid, useless laws. This doesn't seem to be one of those though.
Finally, Justice Breyer dissents to point out some of the obvious flaws in the majority's opinion. "The majority reserves judgment about whether compulsion is permissible in [instances where the name itself provides police with 'a link in the chain of evidence needed to convict the individual of a separate offense.' How then is a police officer in the midst of a Terry stop to distinguish between the majority's ordinary case and this special case where the majority reserves judgment?"
It was a poorly reasoned opinion that the majority simply got wrong.
