[Vision2020] Is not giving your name a criminal offense?

Bruce and Jean Livingston jeanlivingston@turbonet.com
Wed, 24 Mar 2004 22:24:34 -0800


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Actually, I think Donovan is probably right on this one.  As I recall =
the facts of this "do you have to give your name" case, it involved a =
so-called "Terry stop" (as in Terry v. Ohio (US 1969 or thereabouts), =
the stop and question case that was held to be a reasonable "seizure" =
under the Fourth Amendment -- to stop and question someone based on some =
amount of suspicion less than probable cause.  The rancher in the "name" =
case was standing by his car and was questioned by the police.  No Terry =
violation under the Fourth Amendment occurred because the police had =
some suspicion that he might fit the description of someone who had been =
seen beating someone.  The man refused to give his name when asked by =
the police.  I think that Donovan is right and that the Court is =
supposed to decide whether being forced to answer questions by the =
police is being forced to testify against oneself in violation of the =
Fifth Amendment.

Bruce Livingston

----- Original Message -----=20
  From: Donovan Arnold=20
  To: jeanlivingston@turbonet.com=20
  Cc: vision2020@moscow.com=20
  Sent: Wednesday, March 24, 2004 7:59 PM
  Subject: Re: [Vision2020] Is not giving your name a criminal offense?


  Bruce,

  I believe the argument was that it violated the 5th amendment, not =
testifying against oneself, or self-incrimination. If I was a wanted for =
murder in 4 other states, I might not want to give my real name, =
otherwise I could be extradited, tried, and executed. Where as if I kept =
my mouth shut and "remained silent" they might eventually let me go if =
they could not figure out who I was. It would essentially be testifying =
against oneself, which is in violation of the 5th Amendment, which is =
why I so strongly disagree with the Supreme Court, as I usually do.

  Donovan J Arnold



  >From: "Bruce and Jean Livingston" <jeanlivingston@turbonet.com>=20
  >CC: <vision2020@moscow.com>=20
  >Subject: Re: [Vision2020] Is not giving your name a criminal offense? =

  >Date: Wed, 24 Mar 2004 19:30:59 -0800=20
  >=20
  >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.=20
  >=20
  >Bruce Livingston=20
  > =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
  >   >=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
  >=20
  >=20
  =
>------------------------------------------------------------------------=
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<DIV>Actually, I think Donovan is probably right on this one.&nbsp; As I =
recall=20
the facts of this "do you have to give your name" case, it involved a =
so-called=20
"Terry stop" (as in Terry v. Ohio (US 1969 or thereabouts), the stop and =

question case that was held to be a reasonable "seizure" under the =
Fourth=20
Amendment -- to stop and question someone based on some amount of =
suspicion less=20
than probable cause.&nbsp; The rancher in the "name" case was standing =
by his=20
car and was questioned by the police.&nbsp; No Terry violation under the =
Fourth=20
Amendment occurred because the police had some suspicion that he might =
fit the=20
description of someone who had been seen beating someone.&nbsp; The man =
refused=20
to give his name when asked by the police.&nbsp; I think that Donovan is =
right=20
and that the Court is supposed to decide whether being forced to answer=20
questions by&nbsp;the police is being forced to testify against oneself =
in=20
violation of the Fifth Amendment.</DIV>
<DIV>&nbsp;</DIV>
<DIV>Bruce Livingston</DIV>
<DIV>&nbsp;</DIV>
<DIV>----- Original Message ----- </DIV>
<BLOCKQUOTE=20
style=3D"PADDING-RIGHT: 0px; PADDING-LEFT: 5px; MARGIN-LEFT: 5px; =
BORDER-LEFT: #000000 2px solid; MARGIN-RIGHT: 0px">
  <DIV=20
  style=3D"BACKGROUND: #e4e4e4; FONT: 10pt arial; font-color: =
black"><B>From:</B>=20
  <A title=3Ddonovanarnold@hotmail.com=20
  href=3D"mailto:donovanarnold@hotmail.com">Donovan Arnold</A> </DIV>
  <DIV style=3D"FONT: 10pt arial"><B>To:</B> <A =
title=3Djeanlivingston@turbonet.com=20
  =
href=3D"mailto:jeanlivingston@turbonet.com">jeanlivingston@turbonet.com</=
A>=20
  </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 =
7:59=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>Bruce,</P>
  <DIV>
  <DIV class=3DRTE>
  <P>I believe the argument was that it violated the 5th amendment, not=20
  testifying against oneself, or self-incrimination. If I was a wanted =
for=20
  murder in 4 other states, I might not want to give my real name, =
otherwise I=20
  could be extradited, tried, and executed. Where as if I kept my mouth =
shut and=20
  "remained silent" they might eventually let me go if they could not =
figure out=20
  who I was. It would essentially be testifying against oneself, which =
is in=20
  violation of the 5th Amendment, which is why I so strongly disagree =
with the=20
  Supreme Court, as I usually do.</P>
  <P>Donovan J Arnold<BR><BR></P></DIV>
  <DIV></DIV>&gt;From: "Bruce and Jean Livingston"=20
  &lt;jeanlivingston@turbonet.com&gt;=20
  <DIV></DIV>&gt;CC: &lt;vision2020@moscow.com&gt;=20
  <DIV></DIV>&gt;Subject: Re: [Vision2020] Is not giving your name a =
criminal=20
  offense?=20
  <DIV></DIV>&gt;Date: Wed, 24 Mar 2004 19:30:59 -0800=20
  <DIV></DIV>&gt;=20
  <DIV></DIV>&gt;I have not studied this closely, but with that caveat, =
my=20
  understanding is that the State of Nevada passed a state law requiring =
people=20
  to identify themselves somehow or sometime.&nbsp;&nbsp;As I understand =
it, the=20
  argument in the Supreme Court is that the Nevada state law, under =
which the=20
  rancher who refused to identify himself was convicted, violates the =
federal=20
  Constitution.&nbsp;&nbsp;Which amendment?&nbsp;&nbsp;I'm guessing the =
Fourth=20
  (unreasonable search or seizure), but I haven't read any of the cases, =
just=20
  secondary sources.=20
  <DIV></DIV>&gt;=20
  <DIV></DIV>&gt;Bruce Livingston=20
  <DIV></DIV>&gt;&nbsp;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;W.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp;=20
  &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Supreme Court =
Hears Case=20
  of Man Who Withheld ID=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
By LINDA=20
  GREENHOUSE=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;=20
  Published: March 23, 2004=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;=20
  ASHINGTON, March 22 - A Nevada rancher's refusal four years ago to =
tell a=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;deputy sheriff his name led to a =
Supreme Court=20
  argument on Monday on a question=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;that, surprisingly, the justices have =
never=20
  resolved: whether people can be=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;required to identify themselves when =
the=20
  police have some basis for suspicion=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;but lack the probable cause necessary =
for an=20
  arrest.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp;=20
  =
&gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nb=
sp;Advertisement=20

  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
The=20
  answer, in a case that has drawn intense interest from those who fear=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;increased government intrusion on =
personal=20
  privacy, appeared elusive.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
"A name=20
  itself is a neutral fact" that is neither incriminating nor an=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;undue invasion of privacy, Conrad =
Hafen,=20
  Nevada's senior deputy attorney=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;general, told the court in defense of =
a state=20
  statute that requires people to=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;identify themselves to the police if =
stopped=20
  "under circumstances which=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;reasonably indicate that the person =
has=20
  committed, is committing or is about to=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;commit a crime."=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
"It's a=20
  neutral fact that I'm wearing a pinstripe suit," Justice David H.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;Souter told Mr. Hafen. But if someone =
who had=20
  just robbed a bank was reported to=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;be wearing a pinstripe suit, that fact =
if=20
  reported to the police might no longer=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;be so neutral, Justice Souter added.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
The Bush=20
  administration joined the state in defending the statute.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
Lawyers=20
  for Larry D. Hiibel, who is appealing his conviction for violating=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;the Nevada law, raised two =
constitutional=20
  challenges to the identification=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;requirement: that it amounts to an =
illegal=20
  search under the Fourth Amendment and=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;that it compels self-incrimination in=20
  violation of the Fifth Amendment.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
The=20
  Nevada Supreme Court upheld Mr. Hiibel's conviction, a misdemeanor,=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;and rejected his constitutional =
challenge to=20
  the state law.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
Standing=20
  by his pick-up truck on a rural road, he had been approached by a=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;deputy sheriff who was investigating a =
passing=20
  motorist's report that a man in=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;the truck had been hitting a woman. =
Mr.=20
  Hiibel's adult daughter was in the cab=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;of the truck .=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
The=20
  deputy, Lee Dove, asked Mr. Hiibel 11 times for identification. Mr.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;Hiibel, saying he had done nothing =
wrong,=20
  refused to give his name and=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;challenged Deputy Dove to arrest him.=20
  Eventually, the deputy did arrest him. A=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;videotape of the incident, captured by =
a=20
  camera in the squad car, is on Mr.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;Hiibel's Web site, www.hiibel.com. Mr. =
Hiibel=20
  was never charged with any=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;criminal offense beyond his refusal to =

  identify himself.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A =

  landmark Supreme Court ruling in 1968, Terry v. Ohio, gave the police=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;the authority to briefly detain, =
question and=20
  conduct a pat-down search of=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;someone whose activities - casing a =
Cleveland=20
  storefront, in that case - gave=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;rise to "reasonable suspicion," short =
of=20
  probable cause for a formal arrest.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;There is no dispute that the encounter =
between=20
  Mr. Hiibel and Deputy Dove was a=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;"Terry stop" within the meaning of =
that=20
  decision. The dispute in Hiibel v. Sixth=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;Judicial District Court, No. 03-5554, =
is over=20
  Mr. Hiibel's response, or lack of=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;response.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
Robert E.=20
  Dolan, Nevada's deputy state public defender, told the justices=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;that while the deputy "certainly had =
the right=20
  to ask" Mr. Hiibel for his name,=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;"equally so, Mr. Hiibel had the right =
not to=20
  respond."=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
Justice=20
  Antonin Scalia was openly skeptical. "What is the meaning of=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;Terry?" he asked. Did Mr. Dolan mean =
that the=20
  police were "allowed to ask=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;questions but shouldn't expect =
answers?"=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
Yes, the=20
  public defender replied; the state should not be permitted to=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;criminalize silence or to "extract =
data from a=20
  person."=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
Justice=20
  Stephen G. Breyer appeared to agree, suggesting a rule under which=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;the police can ask but the citizen =
does not=20
  have to answer. "Everyone can=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;understand that," Justice Breyer said, =
adding,=20
  "Why complicate this thing?"=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;Several Supreme Court decisions over =
the years=20
  have suggested such a rule, but=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;there has never been a formal opinion =
to that=20
  effect.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
One of=20
  the Fourth Amendment questions in the case is whether a person's=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;refusal to answer a seemingly benign =
identity=20
  question can convert a police=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;officer's "reasonable suspicion" into =
probable=20
  cause to make an arrest. Only=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;Justice Scalia appeared to endorse =
that=20
  prospect. "I would think any reasonable=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;citizen would answer," he observed.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
One of=20
  the many wrinkles in the case is that once a person is arrested,=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;the right to remain silent is =
guaranteed by=20
  the Fifth Amendment. To that extent,=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;a person who falls under a lesser =
degree of=20
  suspicion might be seen as having=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;less constitutional protection. =
Another=20
  wrinkle is that there is no claim that=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;the police cannot run a check on a =
license tag=20
  or - if the suspect is driving -=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;ask to see the driver's license. In =
this case,=20
  Mr. Hiibel's daughter was behind=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;the wheel, Mr. Hiibel was outside the =
truck,=20
  and the case was not treated as a=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;traffic investigation.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
As a=20
  matter of Fifth Amendment analysis, one question is whether giving=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;one's name is sufficiently =
"testimonial" to=20
  invoke the constitutional protection=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;against self-incrimination. "The =
question, it=20
  seems to me, is whether a name=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;itself has intrinsic testimonial=20
  consequences," Justice Anthony M. Kennedy told=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;Mr. Dolan, the public defender.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
If it did=20
  not, Mr. Dolan replied, "the government could require name=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;tags."=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
In briefs=20
  filed with the court, civil liberties groups warned that a=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;rejection of Mr. Hiibel's claim to =
privacy=20
  could open the door to such measures=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;as national identification cards. One =
group,=20
  the Electronic Privacy Information=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;Center, said that government databases =
were=20
  now of such "extraordinary scope"=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;that "systems of mass public =
surveillance"=20
  could result from a ruling that=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;authorized "coerced disclosure of =
identity."=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; =
But the=20
  justices appeared eager to avoid a broad ruling and to confine=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;their eventual decision to the =
specific=20
  context of a suspected crime. "We're all=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;concerned about national ID cards and =
all that=20
  kind of stuff," Justice John Paul=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;Stevens said at one point.=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;&nbsp;&nbsp; &gt;=20
  <DIV></DIV>&gt;=20
  <DIV></DIV>&gt;=20
  =
<DIV></DIV>&gt;----------------------------------------------------------=
--------------------=20

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