[Vision2020] Is not giving your name a criminal offense?
Ellen Roskovich
gussie443@hotmail.com
Wed, 24 Mar 2004 18:23:02 -0800
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<P><FONT face="Arial Black, Geneva, Arial, Sans-serif" color=#0000cc size=3>I was hoping some local legal beagle would jump right in and give us a clue. There also used to be a lot of LEO's on the list. . . . what would/could they do faced with a similar situation?</FONT></P>
<P><FONT face="Arial Black" color=#0000cc size=3>I have a little pamphlet from the ACLU, "What to do if you're stopped by the police", and it states "You don't have to answer a police officer's questions, but you must show your driver's license and registration when stopped in a car. In any other situations, you can't legally be arrested for refusing to identify yourself to a police officer." But it sounds like failure to identify yourself is at least a misdemeanor in the state of Nevada based on the story that appears below.</FONT></P>
<P><FONT face="Arial Black" color=#0000cc size=3>It's really interesting, and maybe my ACLU info is a bit misleading, because in the same pamphlet it states: "It's not a crime to refuse to answer questions, but refusing to answer can make the police suspicious about you. You can't be arrested merely for refusing to identify yourself on the street."</FONT></P>
<P><FONT face="Arial Black" color=#0000cc size=3>I notice that the article below mentions "the Bush administration" so does that mean that since 9/11 Homeland Security has made changes to the law that would make my ACLU pamphlet obsolete? Must you identify yourself on demand? </FONT></P>
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<P><FONT face="Arial Black" color=#0000cc size=3>Ellen A. Roskovich, Moscow, ID</FONT> </P>
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<DIV></DIV>>From: "Art Deco aka W. Fox" <deco@moscow.com>
<DIV></DIV>>To: "Vision 2020" <vision2020@moscow.com>
<DIV></DIV>>Subject: [Vision2020] Is not giving your name a criminal offense?
<DIV></DIV>>Date: Tue, 23 Mar 2004 07:23:40 -0800
<DIV></DIV>>
<DIV></DIV>> >From today's NY Times:
<DIV></DIV>>
<DIV></DIV>>It would be interesting to hear views across the entire Palouse region political
<DIV></DIV>>spectrum on this issue: Is it a crime to refuse to give your name to a law
<DIV></DIV>>enforcement officer?
<DIV></DIV>>
<DIV></DIV>>W.
<DIV></DIV>>
<DIV></DIV>>
<DIV></DIV>>
<DIV></DIV>> Supreme Court Hears Case of Man Who Withheld ID
<DIV></DIV>> By LINDA GREENHOUSE
<DIV></DIV>>
<DIV></DIV>> Published: March 23, 2004
<DIV></DIV>>
<DIV></DIV>>
<DIV></DIV>> ASHINGTON, March 22 - A Nevada rancher's refusal four years ago to tell a
<DIV></DIV>>deputy sheriff his name led to a Supreme Court argument on Monday on a question
<DIV></DIV>>that, surprisingly, the justices have never resolved: whether people can be
<DIV></DIV>>required to identify themselves when the police have some basis for suspicion
<DIV></DIV>>but lack the probable cause necessary for an arrest.
<DIV></DIV>>
<DIV></DIV>> Advertisement
<DIV></DIV>>
<DIV></DIV>>
<DIV></DIV>> The answer, in a case that has drawn intense interest from those who fear
<DIV></DIV>>increased government intrusion on personal privacy, appeared elusive.
<DIV></DIV>>
<DIV></DIV>> "A name itself is a neutral fact" that is neither incriminating nor an
<DIV></DIV>>undue invasion of privacy, Conrad Hafen, Nevada's senior deputy attorney
<DIV></DIV>>general, told the court in defense of a state statute that requires people to
<DIV></DIV>>identify themselves to the police if stopped "under circumstances which
<DIV></DIV>>reasonably indicate that the person has committed, is committing or is about to
<DIV></DIV>>commit a crime."
<DIV></DIV>>
<DIV></DIV>> "It's a neutral fact that I'm wearing a pinstripe suit," Justice David H.
<DIV></DIV>>Souter told Mr. Hafen. But if someone who had just robbed a bank was reported to
<DIV></DIV>>be wearing a pinstripe suit, that fact if reported to the police might no longer
<DIV></DIV>>be so neutral, Justice Souter added.
<DIV></DIV>>
<DIV></DIV>> The Bush administration joined the state in defending the statute.
<DIV></DIV>>
<DIV></DIV>> Lawyers for Larry D. Hiibel, who is appealing his conviction for violating
<DIV></DIV>>the Nevada law, raised two constitutional challenges to the identification
<DIV></DIV>>requirement: that it amounts to an illegal search under the Fourth Amendment and
<DIV></DIV>>that it compels self-incrimination in violation of the Fifth Amendment.
<DIV></DIV>>
<DIV></DIV>> The Nevada Supreme Court upheld Mr. Hiibel's conviction, a misdemeanor,
<DIV></DIV>>and rejected his constitutional challenge to the state law.
<DIV></DIV>>
<DIV></DIV>> Standing by his pick-up truck on a rural road, he had been approached by a
<DIV></DIV>>deputy sheriff who was investigating a passing motorist's report that a man in
<DIV></DIV>>the truck had been hitting a woman. Mr. Hiibel's adult daughter was in the cab
<DIV></DIV>>of the truck .
<DIV></DIV>>
<DIV></DIV>> The deputy, Lee Dove, asked Mr. Hiibel 11 times for identification. Mr.
<DIV></DIV>>Hiibel, saying he had done nothing wrong, refused to give his name and
<DIV></DIV>>challenged Deputy Dove to arrest him. Eventually, the deputy did arrest him. A
<DIV></DIV>>videotape of the incident, captured by a camera in the squad car, is on Mr.
<DIV></DIV>>Hiibel's Web site, www.hiibel.com. Mr. Hiibel was never charged with any
<DIV></DIV>>criminal offense beyond his refusal to identify himself.
<DIV></DIV>>
<DIV></DIV>> A landmark Supreme Court ruling in 1968, Terry v. Ohio, gave the police
<DIV></DIV>>the authority to briefly detain, question and conduct a pat-down search of
<DIV></DIV>>someone whose activities - casing a Cleveland storefront, in that case - gave
<DIV></DIV>>rise to "reasonable suspicion," short of probable cause for a formal arrest.
<DIV></DIV>>There is no dispute that the encounter between Mr. Hiibel and Deputy Dove was a
<DIV></DIV>>"Terry stop" within the meaning of that decision. The dispute in Hiibel v. Sixth
<DIV></DIV>>Judicial District Court, No. 03-5554, is over Mr. Hiibel's response, or lack of
<DIV></DIV>>response.
<DIV></DIV>>
<DIV></DIV>> Robert E. Dolan, Nevada's deputy state public defender, told the justices
<DIV></DIV>>that while the deputy "certainly had the right to ask" Mr. Hiibel for his name,
<DIV></DIV>>"equally so, Mr. Hiibel had the right not to respond."
<DIV></DIV>>
<DIV></DIV>> Justice Antonin Scalia was openly skeptical. "What is the meaning of
<DIV></DIV>>Terry?" he asked. Did Mr. Dolan mean that the police were "allowed to ask
<DIV></DIV>>questions but shouldn't expect answers?"
<DIV></DIV>>
<DIV></DIV>> Yes, the public defender replied; the state should not be permitted to
<DIV></DIV>>criminalize silence or to "extract data from a person."
<DIV></DIV>>
<DIV></DIV>> Justice Stephen G. Breyer appeared to agree, suggesting a rule under which
<DIV></DIV>>the police can ask but the citizen does not have to answer. "Everyone can
<DIV></DIV>>understand that," Justice Breyer said, adding, "Why complicate this thing?"
<DIV></DIV>>Several Supreme Court decisions over the years have suggested such a rule, but
<DIV></DIV>>there has never been a formal opinion to that effect.
<DIV></DIV>>
<DIV></DIV>> One of the Fourth Amendment questions in the case is whether a person's
<DIV></DIV>>refusal to answer a seemingly benign identity question can convert a police
<DIV></DIV>>officer's "reasonable suspicion" into probable cause to make an arrest. Only
<DIV></DIV>>Justice Scalia appeared to endorse that prospect. "I would think any reasonable
<DIV></DIV>>citizen would answer," he observed.
<DIV></DIV>>
<DIV></DIV>> One of the many wrinkles in the case is that once a person is arrested,
<DIV></DIV>>the right to remain silent is guaranteed by the Fifth Amendment. To that extent,
<DIV></DIV>>a person who falls under a lesser degree of suspicion might be seen as having
<DIV></DIV>>less constitutional protection. Another wrinkle is that there is no claim that
<DIV></DIV>>the police cannot run a check on a license tag or - if the suspect is driving -
<DIV></DIV>>ask to see the driver's license. In this case, Mr. Hiibel's daughter was behind
<DIV></DIV>>the wheel, Mr. Hiibel was outside the truck, and the case was not treated as a
<DIV></DIV>>traffic investigation.
<DIV></DIV>>
<DIV></DIV>> As a matter of Fifth Amendment analysis, one question is whether giving
<DIV></DIV>>one's name is sufficiently "testimonial" to invoke the constitutional protection
<DIV></DIV>>against self-incrimination. "The question, it seems to me, is whether a name
<DIV></DIV>>itself has intrinsic testimonial consequences," Justice Anthony M. Kennedy told
<DIV></DIV>>Mr. Dolan, the public defender.
<DIV></DIV>>
<DIV></DIV>> If it did not, Mr. Dolan replied, "the government could require name
<DIV></DIV>>tags."
<DIV></DIV>>
<DIV></DIV>> In briefs filed with the court, civil liberties groups warned that a
<DIV></DIV>>rejection of Mr. Hiibel's claim to privacy could open the door to such measures
<DIV></DIV>>as national identification cards. One group, the Electronic Privacy Information
<DIV></DIV>>Center, said that government databases were now of such "extraordinary scope"
<DIV></DIV>>that "systems of mass public surveillance" could result from a ruling that
<DIV></DIV>>authorized "coerced disclosure of identity."
<DIV></DIV>>
<DIV></DIV>> But the justices appeared eager to avoid a broad ruling and to confine
<DIV></DIV>>their eventual decision to the specific context of a suspected crime. "We're all
<DIV></DIV>>concerned about national ID cards and all that kind of stuff," Justice John Paul
<DIV></DIV>>Stevens said at one point.
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