Can a State Make it a Crime to Refuse to Identify Yourself to the Police?
In a Narrow Ruling, the Supreme Court Says Yes
By MICHAEL C. DORF
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Wednesday, Jun. 23, 2004
Earlier this week, in Hiibel v. Sixth Judicial District Court of Nevada, the U.S. Supreme Court upheld the conviction of Larry Dudley Hiibel. Hiibel had violated a Nevada statute that requires persons temporarily detained on "reasonable suspicion" of criminal activity to identify themselves to a police officer.
Hiibel--who claimed he had done nothing wrong and was simply the victim of mistaken identity--believed he had no obligation to tell the officer his name. But the Court found that neither Hiibel's Fourth Amendment right against unreasonable searches and seizures, nor his Fifth Amendment right against self-incrimination, was violated.
In so doing, the Court took some liberties in construing its own past precedents, prompting four Justices to dissent. But despite its technical deficiencies, the Hiibel decision does not threaten civil liberties.
Nor does it, as some commentators have suggested, pave the way for a system of compulsory national identification cards. Moreover, even if it did, such a system would not necessarily be unwise or unconstitutional.
Background: Fourth Amendment Doctrine on Warrantless Search and Arrest
The Fourth Amendment prohibits "unreasonable searches and seizures," and authorizes search and arrest warrants only upon a showing of "probable cause" that a crime has been committed. This language has been construed by the Supreme Court to require that in most circumstances, the police must obtain a warrant for a search or an arrest.
But there are exceptions to the warrant requirement, including for "exigent circumstances": where an emergency prevents the police from obtaining a warrant from a neutral magistrate, they may perform a warrantless search or arrest--if the facts known to them establish probable cause to believe that a crime has been committed.
In addition, there is an exception to the "probable cause" requirement for a warrantless search or arrest. In the 1968 case of Terry v. Ohio, the Court held that police could "stop and frisk" a suspect on "reasonable suspicion" that he had already committed, or was about to commit, a crime. Such a pat-down search, of course, would be warrantless.
It has been generally understood that the "reasonable suspicion" standard is qualitatively and quantitatively lower than the "probable cause" standard that applies to full searches and arrests. Why was a lesser standard appropriate? The Court reasoned that because a stop and frisk subjects the suspect to a lesser forfeiture of his liberty, it could be justified by a lesser burden of proof--hence, the "reasonable suspicion" standard.
Later, in 1979, the Court refused to go further, and establish a standard even lower than "reasonable suspicion." In Brown v. Texas, it held that absent reasonable suspicion of criminality, the police may not simply stop people on the street and ask for their names.
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The Limited Issue Resolved in Hiibel
The issue in Hiibel was whether someone who had been lawfully subject to a Terry stop--that is, someone as to whom the police did have reasonable suspicion--can also be required to provide his name to the police officer who stopped him.
The Justices answered yes. But they divided 5-4 on the issue.
All nine Justices agreed that a person who is not behaving in a way that gives rise to an articulable suspicion of criminality may not be required to state his name or show identification. All nine Justices also agreed that under the Court's prior precedents, the police could ask a person who has been subject to a Terry stop for his name.
The only disagreement that split the Justices--and the specific issue the case addressed--was whether the person could be prosecuted for failing to answer that question.
