[Vision2020] Is not giving your name a criminal offense?
Bruce and Jean Livingston
jeanlivingston@turbonet.com
Wed, 24 Mar 2004 19:30:59 -0800
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I have not studied this closely, but with that caveat, my understanding =
is that the State of Nevada passed a state law requiring people to =
identify themselves somehow or sometime. As I understand it, the =
argument in the Supreme Court is that the Nevada state law, under which =
the rancher who refused to identify himself was convicted, violates the =
federal Constitution. Which amendment? I'm guessing the Fourth =
(unreasonable search or seizure), but I haven't read any of the cases, =
just secondary sources.
Bruce Livingston
----- Original Message -----=20
From: Ellen Roskovich=20
To: deco@moscow.com=20
Cc: vision2020@moscow.com=20
Sent: Wednesday, March 24, 2004 6:23 PM
Subject: RE: [Vision2020] Is not giving your name a criminal offense?
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?
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.
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."
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?=20
Ellen A. Roskovich, Moscow, ID=20
=20
>From: "Art Deco aka W. Fox" <deco@moscow.com>=20
>To: "Vision 2020" <vision2020@moscow.com>=20
>Subject: [Vision2020] Is not giving your name a criminal offense?=20
>Date: Tue, 23 Mar 2004 07:23:40 -0800=20
>=20
> >From today's NY Times:=20
>=20
>It would be interesting to hear views across the entire Palouse =
region political=20
>spectrum on this issue: Is it a crime to refuse to give your name to =
a law=20
>enforcement officer?=20
>=20
>W.=20
>=20
>=20
>=20
> Supreme Court Hears Case of Man Who Withheld ID=20
> By LINDA GREENHOUSE=20
>=20
> Published: March 23, 2004=20
>=20
>=20
> ASHINGTON, March 22 - A Nevada rancher's refusal four years =
ago to tell a=20
>deputy sheriff his name led to a Supreme Court argument on Monday on =
a question=20
>that, surprisingly, the justices have never resolved: whether people =
can be=20
>required to identify themselves when the police have some basis for =
suspicion=20
>but lack the probable cause necessary for an arrest.=20
>=20
> Advertisement=20
>=20
>=20
> The answer, in a case that has drawn intense interest from =
those who fear=20
>increased government intrusion on personal privacy, appeared elusive. =
>=20
> "A name itself is a neutral fact" that is neither =
incriminating nor an=20
>undue invasion of privacy, Conrad Hafen, Nevada's senior deputy =
attorney=20
>general, told the court in defense of a state statute that requires =
people to=20
>identify themselves to the police if stopped "under circumstances =
which=20
>reasonably indicate that the person has committed, is committing or =
is about to=20
>commit a crime."=20
>=20
> "It's a neutral fact that I'm wearing a pinstripe suit," =
Justice David H.=20
>Souter told Mr. Hafen. But if someone who had just robbed a bank was =
reported to=20
>be wearing a pinstripe suit, that fact if reported to the police =
might no longer=20
>be so neutral, Justice Souter added.=20
>=20
> The Bush administration joined the state in defending the =
statute.=20
>=20
> Lawyers for Larry D. Hiibel, who is appealing his conviction =
for violating=20
>the Nevada law, raised two constitutional challenges to the =
identification=20
>requirement: that it amounts to an illegal search under the Fourth =
Amendment and=20
>that it compels self-incrimination in violation of the Fifth =
Amendment.=20
>=20
> The Nevada Supreme Court upheld Mr. Hiibel's conviction, a =
misdemeanor,=20
>and rejected his constitutional challenge to the state law.=20
>=20
> Standing by his pick-up truck on a rural road, he had been =
approached by a=20
>deputy sheriff who was investigating a passing motorist's report that =
a man in=20
>the truck had been hitting a woman. Mr. Hiibel's adult daughter was =
in the cab=20
>of the truck .=20
>=20
> The deputy, Lee Dove, asked Mr. Hiibel 11 times for =
identification. Mr.=20
>Hiibel, saying he had done nothing wrong, refused to give his name =
and=20
>challenged Deputy Dove to arrest him. Eventually, the deputy did =
arrest him. A=20
>videotape of the incident, captured by a camera in the squad car, is =
on Mr.=20
>Hiibel's Web site, www.hiibel.com. Mr. Hiibel was never charged with =
any=20
>criminal offense beyond his refusal to identify himself.=20
>=20
> A landmark Supreme Court ruling in 1968, Terry v. Ohio, gave =
the police=20
>the authority to briefly detain, question and conduct a pat-down =
search of=20
>someone whose activities - casing a Cleveland storefront, in that =
case - gave=20
>rise to "reasonable suspicion," short of probable cause for a formal =
arrest.=20
>There is no dispute that the encounter between Mr. Hiibel and Deputy =
Dove was a=20
>"Terry stop" within the meaning of that decision. The dispute in =
Hiibel v. Sixth=20
>Judicial District Court, No. 03-5554, is over Mr. Hiibel's response, =
or lack of=20
>response.=20
>=20
> Robert E. Dolan, Nevada's deputy state public defender, told =
the justices=20
>that while the deputy "certainly had the right to ask" Mr. Hiibel for =
his name,=20
>"equally so, Mr. Hiibel had the right not to respond."=20
>=20
> Justice Antonin Scalia was openly skeptical. "What is the =
meaning of=20
>Terry?" he asked. Did Mr. Dolan mean that the police were "allowed to =
ask=20
>questions but shouldn't expect answers?"=20
>=20
> Yes, the public defender replied; the state should not be =
permitted to=20
>criminalize silence or to "extract data from a person."=20
>=20
> Justice Stephen G. Breyer appeared to agree, suggesting a rule =
under which=20
>the police can ask but the citizen does not have to answer. "Everyone =
can=20
>understand that," Justice Breyer said, adding, "Why complicate this =
thing?"=20
>Several Supreme Court decisions over the years have suggested such a =
rule, but=20
>there has never been a formal opinion to that effect.=20
>=20
> One of the Fourth Amendment questions in the case is whether a =
person's=20
>refusal to answer a seemingly benign identity question can convert a =
police=20
>officer's "reasonable suspicion" into probable cause to make an =
arrest. Only=20
>Justice Scalia appeared to endorse that prospect. "I would think any =
reasonable=20
>citizen would answer," he observed.=20
>=20
> One of the many wrinkles in the case is that once a person is =
arrested,=20
>the right to remain silent is guaranteed by the Fifth Amendment. To =
that extent,=20
>a person who falls under a lesser degree of suspicion might be seen =
as having=20
>less constitutional protection. Another wrinkle is that there is no =
claim that=20
>the police cannot run a check on a license tag or - if the suspect is =
driving -=20
>ask to see the driver's license. In this case, Mr. Hiibel's daughter =
was behind=20
>the wheel, Mr. Hiibel was outside the truck, and the case was not =
treated as a=20
>traffic investigation.=20
>=20
> As a matter of Fifth Amendment analysis, one question is =
whether giving=20
>one's name is sufficiently "testimonial" to invoke the constitutional =
protection=20
>against self-incrimination. "The question, it seems to me, is whether =
a name=20
>itself has intrinsic testimonial consequences," Justice Anthony M. =
Kennedy told=20
>Mr. Dolan, the public defender.=20
>=20
> If it did not, Mr. Dolan replied, "the government could =
require name=20
>tags."=20
>=20
> In briefs filed with the court, civil liberties groups warned =
that a=20
>rejection of Mr. Hiibel's claim to privacy could open the door to =
such measures=20
>as national identification cards. One group, the Electronic Privacy =
Information=20
>Center, said that government databases were now of such =
"extraordinary scope"=20
>that "systems of mass public surveillance" could result from a ruling =
that=20
>authorized "coerced disclosure of identity."=20
>=20
> But the justices appeared eager to avoid a broad ruling and to =
confine=20
>their eventual decision to the specific context of a suspected crime. =
"We're all=20
>concerned about national ID cards and all that kind of stuff," =
Justice John Paul=20
>Stevens said at one point.=20
>=20
>=20
>=20
>=20
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<DIV>I have not studied this closely, but with that caveat, my =
understanding is=20
that the State of Nevada passed a state law requiring people to identify =
themselves somehow or sometime. As I understand it, the argument =
in the=20
Supreme Court is that the Nevada state law, under which the rancher who =
refused=20
to identify himself was convicted, violates the federal =
Constitution. =20
Which amendment? I'm guessing the Fourth (unreasonable search or =
seizure),=20
but I haven't read any of the cases, just secondary sources.</DIV>
<DIV> </DIV>
<DIV>Bruce Livingston</DIV>
<BLOCKQUOTE=20
style=3D"PADDING-RIGHT: 0px; PADDING-LEFT: 5px; MARGIN-LEFT: 5px; =
BORDER-LEFT: #000000 2px solid; MARGIN-RIGHT: 0px">
<DIV style=3D"FONT: 10pt arial">----- Original Message ----- </DIV>
<DIV=20
style=3D"BACKGROUND: #e4e4e4; FONT: 10pt arial; font-color: =
black"><B>From:</B>=20
<A title=3Dgussie443@hotmail.com =
href=3D"mailto:gussie443@hotmail.com">Ellen=20
Roskovich</A> </DIV>
<DIV style=3D"FONT: 10pt arial"><B>To:</B> <A title=3Ddeco@moscow.com=20
href=3D"mailto:deco@moscow.com">deco@moscow.com</A> </DIV>
<DIV style=3D"FONT: 10pt arial"><B>Cc:</B> <A =
title=3Dvision2020@moscow.com=20
href=3D"mailto:vision2020@moscow.com">vision2020@moscow.com</A> </DIV>
<DIV style=3D"FONT: 10pt arial"><B>Sent:</B> Wednesday, March 24, 2004 =
6:23=20
PM</DIV>
<DIV style=3D"FONT: 10pt arial"><B>Subject:</B> RE: [Vision2020] Is =
not giving=20
your name a criminal offense?</DIV>
<DIV><BR></DIV>
<DIV>
<P><BR><BR></P>
<DIV>
<DIV class=3DRTE>
<P><FONT face=3D"Arial Black, Geneva, Arial, Sans-serif" =
color=3D#0000cc size=3D3>I=20
was hoping some local legal beagle would jump right in and give us a=20
clue. There also used to be a lot of LEO's on the list. . . . =
what=20
would/could they do faced with a similar situation?</FONT></P>
<P><FONT face=3D"Arial Black" color=3D#0000cc size=3D3>I have a little =
pamphlet from=20
the ACLU, "What to do if you're stopped by the police", and it states =
"You=20
don't have to answer a police officer's questions, but you must =
show your=20
driver's license and registration when stopped in a car. In any other=20
situations, you can't legally be arrested for refusing to identify =
yourself to=20
a police officer." But it sounds like failure to identify =
yourself is at=20
least a misdemeanor in the state of Nevada based on the story that =
appears=20
below.</FONT></P>
<P><FONT face=3D"Arial Black" color=3D#0000cc size=3D3>It's really =
interesting, and=20
maybe my ACLU info is a bit misleading, because in the same =
pamphlet=20
it states: "It's not a crime to refuse to answer questions, but =
refusing=20
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=3D"Arial Black" color=3D#0000cc size=3D3>I notice that =
the article=20
below mentions "the Bush administration" so does that mean that =
since=20
9/11 Homeland Security has made changes to the law that would make my =
ACLU=20
pamphlet obsolete? Must you identify yourself on=20
demand? </FONT></P>
<P><FONT face=3D"Arial Black" color=3D#0000cc =
size=3D3></FONT> </P>
<P><FONT face=3D"Arial Black" color=3D#0000cc size=3D3>Ellen A. =
Roskovich, Moscow,=20
ID</FONT> </P>
<P><FONT face=3D"Arial Black" color=3D#0000cc=20
size=3D3></FONT><BR><BR> </P></DIV>
<DIV></DIV>>From: "Art Deco aka W. Fox" <deco@moscow.com>=20
<DIV></DIV>>To: "Vision 2020" <vision2020@moscow.com>=20
<DIV></DIV>>Subject: [Vision2020] Is not giving your name a =
criminal=20
offense?=20
<DIV></DIV>>Date: Tue, 23 Mar 2004 07:23:40 -0800=20
<DIV></DIV>>=20
<DIV></DIV>> >From today's NY Times:=20
<DIV></DIV>>=20
<DIV></DIV>>It would be interesting to hear views across the entire =
Palouse=20
region political=20
<DIV></DIV>>spectrum on this issue: Is it a crime to =
refuse to=20
give your name to a law=20
<DIV></DIV>>enforcement officer?=20
<DIV></DIV>>=20
<DIV></DIV>>W.=20
<DIV></DIV>>=20
<DIV></DIV>>=20
<DIV></DIV>>=20
<DIV></DIV>> =
Supreme Court=20
Hears Case of Man Who Withheld ID=20
<DIV></DIV>> By LINDA =
GREENHOUSE=20
<DIV></DIV>>=20
<DIV></DIV>> Published: March =
23, 2004=20
<DIV></DIV>>=20
<DIV></DIV>>=20
<DIV></DIV>> ASHINGTON, March =
22 - A=20
Nevada rancher's refusal four years ago to tell a=20
<DIV></DIV>>deputy sheriff his name led to a Supreme Court argument =
on=20
Monday on a question=20
<DIV></DIV>>that, surprisingly, the justices have never resolved: =
whether=20
people can be=20
<DIV></DIV>>required to identify themselves when the police have =
some basis=20
for suspicion=20
<DIV></DIV>>but lack the probable cause necessary for an arrest.=20
<DIV></DIV>>=20
=
<DIV></DIV>> &nbs=
p; Advertisement=20
<DIV></DIV>>=20
<DIV></DIV>>=20
<DIV></DIV>> The answer, in a =
case that=20
has drawn intense interest from those who fear=20
<DIV></DIV>>increased government intrusion on personal privacy, =
appeared=20
elusive.=20
<DIV></DIV>>=20
<DIV></DIV>> "A name itself is =
a=20
neutral fact" that is neither incriminating nor an=20
<DIV></DIV>>undue invasion of privacy, Conrad Hafen, Nevada's =
senior deputy=20
attorney=20
<DIV></DIV>>general, told the court in defense of a state statute =
that=20
requires people to=20
<DIV></DIV>>identify themselves to the police if stopped "under=20
circumstances which=20
<DIV></DIV>>reasonably indicate that the person has committed, is=20
committing or is about to=20
<DIV></DIV>>commit a crime."=20
<DIV></DIV>>=20
<DIV></DIV>> "It's a neutral =
fact that=20
I'm wearing a pinstripe suit," Justice David H.=20
<DIV></DIV>>Souter told Mr. Hafen. But if someone who had just =
robbed a=20
bank was reported to=20
<DIV></DIV>>be wearing a pinstripe suit, that fact if reported to =
the=20
police might no longer=20
<DIV></DIV>>be so neutral, Justice Souter added.=20
<DIV></DIV>>=20
<DIV></DIV>> The Bush =
administration=20
joined the state in defending the statute.=20
<DIV></DIV>>=20
<DIV></DIV>> Lawyers for Larry =
D.=20
Hiibel, who is appealing his conviction for violating=20
<DIV></DIV>>the Nevada law, raised two constitutional challenges to =
the=20
identification=20
<DIV></DIV>>requirement: that it amounts to an illegal search under =
the=20
Fourth Amendment and=20
<DIV></DIV>>that it compels self-incrimination in violation of the =
Fifth=20
Amendment.=20
<DIV></DIV>>=20
<DIV></DIV>> The Nevada Supreme =
Court=20
upheld Mr. Hiibel's conviction, a misdemeanor,=20
<DIV></DIV>>and rejected his constitutional challenge to the state =
law.=20
<DIV></DIV>>=20
<DIV></DIV>> Standing by his =
pick-up=20
truck on a rural road, he had been approached by a=20
<DIV></DIV>>deputy sheriff who was investigating a passing =
motorist's=20
report that a man in=20
<DIV></DIV>>the truck had been hitting a woman. Mr. Hiibel's adult =
daughter=20
was in the cab=20
<DIV></DIV>>of the truck .=20
<DIV></DIV>>=20
<DIV></DIV>> The deputy, Lee =
Dove,=20
asked Mr. Hiibel 11 times for identification. Mr.=20
<DIV></DIV>>Hiibel, saying he had done nothing wrong, refused to =
give his=20
name and=20
<DIV></DIV>>challenged Deputy Dove to arrest him. Eventually, the =
deputy=20
did arrest him. A=20
<DIV></DIV>>videotape of the incident, captured by a camera in the =
squad=20
car, is on Mr.=20
<DIV></DIV>>Hiibel's Web site, www.hiibel.com. Mr. Hiibel was never =
charged=20
with any=20
<DIV></DIV>>criminal offense beyond his refusal to identify =
himself.=20
<DIV></DIV>>=20
<DIV></DIV>> A landmark Supreme =
Court=20
ruling in 1968, Terry v. Ohio, gave the police=20
<DIV></DIV>>the authority to briefly detain, question and conduct a =
pat-down search of=20
<DIV></DIV>>someone whose activities - casing a Cleveland =
storefront, in=20
that case - gave=20
<DIV></DIV>>rise to "reasonable suspicion," short of probable cause =
for a=20
formal arrest.=20
<DIV></DIV>>There is no dispute that the encounter between Mr. =
Hiibel and=20
Deputy Dove was a=20
<DIV></DIV>>"Terry stop" within the meaning of that decision. The =
dispute=20
in Hiibel v. Sixth=20
<DIV></DIV>>Judicial District Court, No. 03-5554, is over Mr. =
Hiibel's=20
response, or lack of=20
<DIV></DIV>>response.=20
<DIV></DIV>>=20
<DIV></DIV>> Robert E. Dolan, =
Nevada's=20
deputy state public defender, told the justices=20
<DIV></DIV>>that while the deputy "certainly had the right to ask" =
Mr.=20
Hiibel for his name,=20
<DIV></DIV>>"equally so, Mr. Hiibel had the right not to respond."=20
<DIV></DIV>>=20
<DIV></DIV>> Justice Antonin =
Scalia was=20
openly skeptical. "What is the meaning of=20
<DIV></DIV>>Terry?" he asked. Did Mr. Dolan mean that the police =
were=20
"allowed to ask=20
<DIV></DIV>>questions but shouldn't expect answers?"=20
<DIV></DIV>>=20
<DIV></DIV>> Yes, the public =
defender=20
replied; the state should not be permitted to=20
<DIV></DIV>>criminalize silence or to "extract data from a person." =
<DIV></DIV>>=20
<DIV></DIV>> Justice Stephen G. =
Breyer=20
appeared to agree, suggesting a rule under which=20
<DIV></DIV>>the police can ask but the citizen does not have to =
answer.=20
"Everyone can=20
<DIV></DIV>>understand that," Justice Breyer said, adding, "Why =
complicate=20
this thing?"=20
<DIV></DIV>>Several Supreme Court decisions over the years have =
suggested=20
such a rule, but=20
<DIV></DIV>>there has never been a formal opinion to that effect.=20
<DIV></DIV>>=20
<DIV></DIV>> One of the Fourth=20
Amendment questions in the case is whether a person's=20
<DIV></DIV>>refusal to answer a seemingly benign identity question =
can=20
convert a police=20
<DIV></DIV>>officer's "reasonable suspicion" into probable cause to =
make an=20
arrest. Only=20
<DIV></DIV>>Justice Scalia appeared to endorse that prospect. "I =
would=20
think any reasonable=20
<DIV></DIV>>citizen would answer," he observed.=20
<DIV></DIV>>=20
<DIV></DIV>> One of the many =
wrinkles=20
in the case is that once a person is arrested,=20
<DIV></DIV>>the right to remain silent is guaranteed by the Fifth=20
Amendment. To that extent,=20
<DIV></DIV>>a person who falls under a lesser degree of suspicion =
might be=20
seen as having=20
<DIV></DIV>>less constitutional protection. Another wrinkle is that =
there=20
is no claim that=20
<DIV></DIV>>the police cannot run a check on a license tag or - if =
the=20
suspect is driving -=20
<DIV></DIV>>ask to see the driver's license. In this case, Mr. =
Hiibel's=20
daughter was behind=20
<DIV></DIV>>the wheel, Mr. Hiibel was outside the truck, and the =
case was=20
not treated as a=20
<DIV></DIV>>traffic investigation.=20
<DIV></DIV>>=20
<DIV></DIV>> As a matter of =
Fifth=20
Amendment analysis, one question is whether giving=20
<DIV></DIV>>one's name is sufficiently "testimonial" to invoke the=20
constitutional protection=20
<DIV></DIV>>against self-incrimination. "The question, it seems to =
me, is=20
whether a name=20
<DIV></DIV>>itself has intrinsic testimonial consequences," Justice =
Anthony=20
M. Kennedy told=20
<DIV></DIV>>Mr. Dolan, the public defender.=20
<DIV></DIV>>=20
<DIV></DIV>> If it did not, Mr. =
Dolan=20
replied, "the government could require name=20
<DIV></DIV>>tags."=20
<DIV></DIV>>=20
<DIV></DIV>> In briefs filed =
with the=20
court, civil liberties groups warned that a=20
<DIV></DIV>>rejection of Mr. Hiibel's claim to privacy could open =
the door=20
to such measures=20
<DIV></DIV>>as national identification cards. One group, the =
Electronic=20
Privacy Information=20
<DIV></DIV>>Center, said that government databases were now of such =
"extraordinary scope"=20
<DIV></DIV>>that "systems of mass public surveillance" could result =
from a=20
ruling that=20
<DIV></DIV>>authorized "coerced disclosure of identity."=20
<DIV></DIV>>=20
<DIV></DIV>> But the justices =
appeared=20
eager to avoid a broad ruling and to confine=20
<DIV></DIV>>their eventual decision to the specific context of a =
suspected=20
crime. "We're all=20
<DIV></DIV>>concerned about national ID cards and all that kind of =
stuff,"=20
Justice John Paul=20
<DIV></DIV>>Stevens said at one point.=20
<DIV></DIV>>=20
<DIV></DIV>>=20
<DIV></DIV>>=20
<DIV></DIV>>=20
<DIV></DIV></DIV></DIV><BR clear=3Dall>
<HR>
<A href=3D"http://g.msn.com/8HMBENUS/2737??PS=3D">Free up your inbox =
with MSN=20
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_____________________________________________________ List services =
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available by First Step Internet, serving the communities of the =
Palouse since=20
1994. http://www.fsr.net mailto:Vision2020@moscow.com=20
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