All or nothing: the Supreme Court answers the question "what's in a name?".

• Author: Nederhood, Robert

Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 124 S. Ct. 2451 (2004)

1. INTRODUCTION

   In Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, the United States Supreme Court affirmed the constitutionality of Nevada Revised Statute (NRS) Section 171.123. (1) This statute required an individual to identify himself in response to a police officer's inquiry, or face arrest. (2) Petitioner argued that his arrest pursuant to Section 171.123 violated his Fourth Amendment right to be free from unreasonable searches and seizures and deprived him of the Fifth Amendment's protections against self-incrimination. (3) The Court, after balancing the intrusion on petitioner's rights against the legitimate government interests served by the search, reiterated that questions concerning a suspect's identity are permitted during an investigative stop allowed by Terry v. Ohio; it then held that petitioner could be compelled to answer the inquiry. (4) The Court also held that the requirement of the Nevada statute did not violate petitioner's Fifth Amendment right to be free from self-incrimination because "disclosure of his name presented no reasonable danger of incrimination." (5)

   This Note first argues that the Hiibel Court wrongly decided petitioner's Fourth Amendment claim. In Hiibel, the Court determined the reasonableness of the search by balancing the individual's right to be free from intrusion against the legitimate government interests promoted by the search. Accepting the Court's own test, however, petitioner's arrest for refusal to identify himself under Section 117.123 was unconstitutional. The minimal government interest served by the requirement for identification was outweighed by the breach of Hiibel's right to be secure in his person "against unreasonable searches and seizures." (6)

   Secondly, this Note argues that a person's identity may indeed be incriminating evidence; thus, the Court wrongly held that petitioner's arrest pursuant to Section 117.123 did not violate his Fifth Amendment right to be free from self-incrimination. While seeking to justify the constitutionality of the statute with regard to both the Fourth and Fifth Amendments, the Court made two mutually exclusive arguments, which call into question the soundness of its reasoning and thus the constitutionality of the Nevada Statute.

2. BACKGROUND

   1. FOURTH AMENDMENT

      Hiibel is the latest in a line of cases interpreting the scope of the law enforcement stops permitted by the Court in Terry v. Ohio. (7) In the nearly forty years since Terry, the Court has set forth a test for determining whether a particular action by law enforcement in connection with a Terry stop violates the Fourth Amendment: whether the intrusion upon the individual's rights is justified by the countervailing government interest implicated by the intrusion. (8)

      1. Terry v. Ohio

         The Fourth Amendment to the Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (9) In Terry v. Ohio, the Court addressed whether a police officer had violated the suspects' Fourth Amendment rights when he, lacking probable cause, patted down suspects in a search for weapons.

         In that case, a police officer noticed three suspicious individuals milling about the front of a store. (10) Concerned that they were planning a robbery, and fearing that they were armed, the officer stopped them and patted them down.(11) During the search, he discovered that two of the men had pistols, and he placed each under arrest. (12) At trial, the defendants made a motion to suppress the guns as evidence, which the trial court denied. (13) The county court of appeals affirmed, and the Ohio Supreme Court dismissed the appeal. (14) The U.S. Supreme Court granted certiorari and affirmed the conviction. (15)

         The Court held that a law enforcement official lacking probable cause can, for the protection of himself and others, conduct a limited search of a suspect's outer clothing in order to discover weapons, when he has observed conduct that leads him to believe that the person stopped may be armed and dangerous. (16) The relevant standard is "reasonable suspicion;" the police officer must "be able to point to specific and articulable facts" combined with the inferences reasonably drawn from those facts, which create reasonable suspicion. (17) The Court acknowledged that the protections of the Fourth Amendment do not cease once an individual leaves the home, but are fully available to the citizen on the street. (18) In addition, it was held that an individual is "seized" for purposes of the Fourth Amendment when a police officer restricts his freedom to walk away, (19) and that the exploration of the exterior of a person's clothing constitutes a "search." (20)

         The key issue in the case was whether there was justification for the officer's intrusion upon petitioners' rights. (21) In the Court's view, the Fourth Amendment was implicated every time a public agent intruded upon an individual's personal security, and the scope of the intrusion was central to the determination of reasonableness. (22) In order to justify an intrusion upon "constitutionally protected interests," the governmental interests at stake must outweigh those being encroached upon. (23) In addition, the Court held that the search and seizure in question were "reasonably related in scope to the justification for their initiation," and the resulting evidence could therefore be admitted without violating petitioners' Fourth Amendment rights. (24)

         The Court justified the search and seizure by pointing to the governmental interests at stake, not least of which was the officer's personal and immediate interest in his own safety. (25) The Court cited the tradition of armed violence by the country's criminals, often directed toward law enforcement officers, as evidence that the search was necessary for the officer's protection. (26) Although the Court allowed the search and seizure in these narrow circumstances, it refused to further "develop ... the limitations which the Fourth Amendment places upon a protective seizure and search for weapons." (27)

         In his concurrence, Justice White wrote in order to clarify the scope and purpose of the holding. (28) Justice White acknowledged that nothing precludes a police officer from posing questions to anyone on the street, and that given the proper circumstances, as in Terry, an individual may be detained while such questions are asked. (29) "Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest." (30)

      2. Subsequent Development of Terry's Fourth Amendment Standard

         The following term, in Davis v. Mississippi, the Court held that fingerprint evidence obtained during an illegal search under the Fourth and Fourteenth Amendments should have been excluded at trial. (31) In the course of reaching this conclusion, the Court criticized the State for relying on cases which approve "general questioning of citizens" during investigation of a potential crime. (32) By its own admission, the Court's statements in these cases "merely reiterated the settled principle that while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer." (33)

         Ten years later, in Brown v. Texas, (34) two police officers, cruising in their patrol car, had observed one man walking away from another in an alley known for its heavy drug traffic. (35) One of the officers testified that the man was stopped because the situation "looked suspicious," although the officers did not suspect him of any specific misconduct. (36) When approached, the suspect refused to identify himself, and was arrested for violation of a Texas statute which criminalized such refusal during a lawful stop. (37) The statute read in relevant part: "A person commits an offense if he intentionally refuses to report or gives a false report of his name and residence address to a peace officer who has lawfully stopped him and requested the information." (38)

         The Court held that when the officers detained the person for the purpose of obtaining his identity, they had seized him for purposes of the Fourth Amendment. (39) The Court, consistent with its analysis in Terry, sought to determine the search's reasonability by balancing the public's interest in preventing crime against the individual's right to be free from unreasonable searches and seizures; (40) this test required that a seizure be justified by "specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or ... a plan embodying explicit, neutral limitations on the conduct of the individual officers." (41) However, the Court found that the arrest was not based on objective criteria--the suspicion had been a baseless hunch--and therefore the Texas statute had been improperly applied to appellant. (42) It refrained from deciding "whether an individual may be punished for refusing to identify himself in the context of a lawful investigatory stop which satisfies Fourth Amendment requirements." (43)

         The Court went on to hold, in Kolender v. Lawson, that a California statute requiring a suspect to provide "credible and reliable" identification under the threat of arrest was unconstitutionally vague under the Due Process Clause of the Fourth Amendment. (44) In his concurrence, Justice Brennan reiterated that brief seizures permitted by Terry must still be "strictly circumscribed" to limit intrusiveness, (45) and described several characteristics of such seizures, including, "most importantly, the suspect must be free to leave after a short time and to decline to answer the questions put to him." (46)

         A year later, the Court indirectly addressed the issue of whether suspects...