Declining to state a name in consideration of the Fifth Amendment's self-incrimination clause and law enforcement databases after Hiibel.

• Author: Ashby, Joseph R.

TABLE OF CONTENTS INTRODUCTION I. APPLYING THE THREE REQUIREMENTS FOR THE INVOCATION OF THE SELF-INCRIMINATION CLAUSE TO THE DISCLOSURE OF A NAME USED FOR A DATABASE SEARCH A. Stating One's Name Is Testimonial 1. Stating One's Name Is Not within the Class of Compelled Acts the Court Has Classified as Nontestimonial 2. Stating One's Name Requires a Sufficient Disclosure from a Person's Mind to Be Testimonial B. Self-Incrimination by Stating One's Name 1. What Circumstances Are Sufficient for a Name to Be Self-Incriminating 2. How a Name Links a Person to Incriminating Information in Databases C. Sanctions for Declining to State One's Name Constitute Compulsion II. CONTOURS OF THE APPLICATION OF THE FIFTH AMENDMENT'S SELF-INCRIMINATION CLAUSE A. Who Can Decline to State Her Name? 1. A Person with Knowledge of the Contents of the Databases 2. A Person without Knowledge of the Contents of the Databases 3. Implications of the Contents of the Databases Being Made Publicly Accessible B. Process of Invocation and Remedies 1. Permissible Scope of Invocation 2. Remedy If a Person Is Arrested C. Permitting a Person to Refuse to State Her Name Would Not Unduly Interfere with Law Enforcement D. Technological Change and the Application of Constitutional Rights CONCLUSION The central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology. (1)

INTRODUCTION

In response to a report of an argument on a public sidewalk, a police officer approaches two people standing in the vicinity of the reported dispute. The officer requests that each person provide her name so the officer can run the names through databases to which the police department subscribes. After searching each name through various databases, the officer might discover that one of the individuals made several purchases of cold medicine containing pseudoephedrine and that the other just received a license from the State to procure certain hazardous chemicals. These two people might be in the early stages of setting up a methamphetamine ring, or they might respectively be a person getting over a cold and an entrepreneur. In either case, merely by giving her name, each person provided the police officer with information that she could have reasonably believed might lead the officer to incriminating evidence.

The potential for a name to he self-incriminating presents a question about the applicability of the Fifth Amendment's Self-Incrimination Clause. In California v. Byers, the Supreme Court held that a person cannot refuse to state her name in the course of a traffic stop based on the Self-Incrimination Clause. (2) The reason is because the statutes applicable to traffic stops are primarily regulatory--not criminal--and the Self-Incrimination Clause is inapplicable to noncriminal regulatory inquiries. (3) Outside of the context of a traffic stop, the Supreme Court has held that the Fourth Amendment prohibits a police officer from stopping an individual to ask for her name unless the police officer has "a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity." (4) If a police officer approaches an individual without reasonable suspicion or probable cause, "the individual has a right to ignore the police [officer] and go about his business." (5) The Supreme Court has stated that:

[w]hile "reasonable suspicion" is a less demanding standard than

probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. The officer must be able to articulate more than an "inchoate

and unparticularized suspicion or 'hunch'" of criminal activity. (6)

The Supreme Court has also indicated that although the "probable-cause standard is incapable of precise definition," (7) the "'substance of all the definitions of probable cause is a reasonable ground for belief of guilt,' and ... the belief of guilt must be particularized with respect to the person to be searched or seized." (8) In Hiibel v. Sixth Judicial District Court, the Supreme Court was presented with the question of whether in a non-traffic-stop situation an officer who has reasonable suspicion can compel a person to state her name. (9)

The Supreme Court in Hiibel held that the Search and Seizure Clause of the Fourth Amendment does not proscribe state or federal statutes from requiring an individual to provide her name to a police officer, so long as the police officer had reasonable suspicion to stop the individual. (10) The Supreme Court also held that based on the facts presented by the defendant, Larry Hiibel, the Fifth Amendment's Self-Incrimination Clause did not protect the defendant's decision to refuse to state his name. (11) The Court, however, explicitly reserved the question of whether some similar set of circumstances may justify an individual's invocation of the Fifth Amendment's Self-Incrimination Clause to refuse to state a name. (12)

The Supreme Court's decision in Hiibel and the Court's Fourth and Fifth Amendment jurisprudence have left unresolved whether a person can invoke the Fifth Amendment's Self-Incrimination Clause to refuse to state a name in a non-traffic-stop, pre-arrest situation. (13) This Note uses the term non-traffic-stop, pre-arrest situation to reference a situation in which a police officer has reasonable suspicion, but does not have probable cause for either a search or an arrest. Post-arrest, a person cannot refuse to state her name based on the Self-Incrimination Clause because the information is being sought for record-keeping purposes and is reasonably related to the government's administrative concerns. (14) The Supreme Court's rationale in these cases does not extend to non-traffic-stop, pre-arrest situations because the purpose for seeking a name in a non-traffic-stop, pre-arrest situation is not regulatory or administrative, but to further a criminal investigation. (15)

The Fifth Amendment's Self-Incrimination Clause (16) only applies to communications that are testimonial, incriminating, and compelled. (17) A statement that fails to meet any one of the requirements is not protected under the Fifth Amendment's Self-Incrimination Clause. (18) The Court has defined the first requirement, that the statement be testimonial, as communications by the accused that "explicitly or implicitly, relate a factual assertion or disclose information." (19) This definition encompasses most verbal statements. (20) The second requirement, that the statement be incriminating, requires that the statement either support a conviction under a criminal statute or provide a link in the chain of evidence for prosecution under a criminal statute. (21) The definition of incriminating extends the privilege to statements that do not contain inculpatory information but that may lead to incriminating information. (22) The third requirement, that the statement be compelled, has been defined by the Supreme Court as circumstances that "deny the individual a 'free choice to admit, to deny, or to refuse to answer.'" (23) A person's refusal to answer a question where the answer would be testimonial, incriminating, and compelled, enjoys the protection of the privilege against self-incrimination.

In the past fifteen years, the implications of a person providing her name to a police officer (24) have been altered by the development of previously infeasible databases, (25) which have changed the information that a name provides. (26) New, complex databases, such as the Factual Analysis Criminal Threat Solution (FACTS), (27) the National Crime Information Center (NCIC), (28) the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT), (29) and the Transportation Workers Identification Credential (TWIC) (30) have the capacity to organize information beyond that available through other resources. (31) They provide police with the ability to search information ranging from property ownership to federal government terrorist watch lists, (32) and from date of birth to the authority of an individual to access various transportation facilities. (33) As will be discussed in this Note, the development of detailed government and commercial databases means that a name now provides access to detailed information about a person's past criminal or alleged criminal activities.

This Note argues that the Self-Incrimination Clause of the Fifth Amendment applies to a person who has been requested to provide her name in a non-traffic-stop, pre-arrest situation because of the potential for law enforcement databases to reveal incriminating information. Part I contends that a person's answer to a question requesting her name for a database search is a compelled, testimonial, self-incriminating statement that fulfills the three requirements for the invocation of the privilege against self-incrimination. Part II evaluates the practical application of people declining to state their names based on the privilege against self-incrimination.

1. APPLYING THE THREE REQUIREMENTS FOR THE INVOCATION OF THE SELF-INCRIMINATION CLAUSE TO THE DISCLOSURE OF A NAME USED FOR A DATABASE SEARCH

   As aforementioned, a statement must be testimonial, incriminating, and compelled to trigger the Fifth Amendment's Self-Incrimination Clause. There are circumstances in which stating one's name to a government agent can meet all three of these requirements. Section I.A shows that stating one's name fulfills the testimonial requirement because a person stating her name is making a factual assertion about her identity. Section I.B establishes that the incriminating aspect of a person's name stems from the ability of a police officer to use a person's name to search various databases and then...