[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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services made available by First Step Internet, serving the communities =
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<DIV>Actually, I think Donovan is probably right on this one. 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. The rancher in the "name" case was standing =
by his=20
car and was questioned by the police. 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. The man =
refused=20
to give his name when asked by the police. I think that Donovan is =
right=20
and that the Court is supposed to decide whether being forced to answer=20
questions by the police is being forced to testify against oneself =
in=20
violation of the Fifth Amendment.</DIV>
<DIV> </DIV>
<DIV>Bruce Livingston</DIV>
<DIV> </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>>From: "Bruce and Jean Livingston"=20
<jeanlivingston@turbonet.com>=20
<DIV></DIV>>CC: <vision2020@moscow.com>=20
<DIV></DIV>>Subject: Re: [Vision2020] Is not giving your name a =
criminal=20
offense?=20
<DIV></DIV>>Date: Wed, 24 Mar 2004 19:30:59 -0800=20
<DIV></DIV>>=20
<DIV></DIV>>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. 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. Which amendment? 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>>=20
<DIV></DIV>>Bruce Livingston=20
<DIV></DIV>> =20
<DIV></DIV>> >=20
<DIV></DIV>> >W.=20
<DIV></DIV>> >=20
<DIV></DIV>> >=20
<DIV></DIV>> >=20
<DIV></DIV>> =20
> Supreme Court =
Hears Case=20
of Man Who Withheld ID=20
<DIV></DIV>> > =
By LINDA=20
GREENHOUSE=20
<DIV></DIV>> >=20
<DIV></DIV>> > =20
Published: March 23, 2004=20
<DIV></DIV>> >=20
<DIV></DIV>> >=20
<DIV></DIV>> > =20
ASHINGTON, March 22 - A Nevada rancher's refusal four years ago to =
tell a=20
<DIV></DIV>> >deputy sheriff his name led to a =
Supreme Court=20
argument on Monday on a question=20
<DIV></DIV>> >that, surprisingly, the justices have =
never=20
resolved: whether people can be=20
<DIV></DIV>> >required to identify themselves when =
the=20
police have some basis for suspicion=20
<DIV></DIV>> >but lack the probable cause necessary =
for an=20
arrest.=20
<DIV></DIV>> >=20
<DIV></DIV>> =20
=
> &nb=
sp;Advertisement=20
<DIV></DIV>> >=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
The=20
answer, in a case that has drawn intense interest from those who fear=20
<DIV></DIV>> >increased government intrusion on =
personal=20
privacy, appeared elusive.=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
"A name=20
itself is a neutral fact" that is neither incriminating nor an=20
<DIV></DIV>> >undue invasion of privacy, Conrad =
Hafen,=20
Nevada's senior deputy attorney=20
<DIV></DIV>> >general, told the court in defense of =
a state=20
statute that requires people to=20
<DIV></DIV>> >identify themselves to the police if =
stopped=20
"under circumstances which=20
<DIV></DIV>> >reasonably indicate that the person =
has=20
committed, is committing or is about to=20
<DIV></DIV>> >commit a crime."=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
"It's a=20
neutral fact that I'm wearing a pinstripe suit," Justice David H.=20
<DIV></DIV>> >Souter told Mr. Hafen. But if someone =
who had=20
just robbed a bank was reported to=20
<DIV></DIV>> >be wearing a pinstripe suit, that fact =
if=20
reported to the police might no longer=20
<DIV></DIV>> >be so neutral, Justice Souter added.=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
The Bush=20
administration joined the state in defending the statute.=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
Lawyers=20
for Larry D. Hiibel, who is appealing his conviction for violating=20
<DIV></DIV>> >the Nevada law, raised two =
constitutional=20
challenges to the identification=20
<DIV></DIV>> >requirement: that it amounts to an =
illegal=20
search under the Fourth Amendment and=20
<DIV></DIV>> >that it compels self-incrimination in=20
violation of the Fifth Amendment.=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
The=20
Nevada Supreme Court upheld Mr. Hiibel's conviction, a misdemeanor,=20
<DIV></DIV>> >and rejected his constitutional =
challenge to=20
the state law.=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
Standing=20
by his pick-up truck on a rural road, he had been approached by a=20
<DIV></DIV>> >deputy sheriff who was investigating a =
passing=20
motorist's report that a man in=20
<DIV></DIV>> >the truck had been hitting a woman. =
Mr.=20
Hiibel's adult daughter was in the cab=20
<DIV></DIV>> >of the truck .=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
The=20
deputy, Lee Dove, asked Mr. Hiibel 11 times for identification. Mr.=20
<DIV></DIV>> >Hiibel, saying he had done nothing =
wrong,=20
refused to give his name and=20
<DIV></DIV>> >challenged Deputy Dove to arrest him.=20
Eventually, the deputy did arrest him. A=20
<DIV></DIV>> >videotape of the incident, captured by =
a=20
camera in the squad car, is on Mr.=20
<DIV></DIV>> >Hiibel's Web site, www.hiibel.com. Mr. =
Hiibel=20
was never charged with any=20
<DIV></DIV>> >criminal offense beyond his refusal to =
identify himself.=20
<DIV></DIV>> >=20
<DIV></DIV>> > A =
landmark Supreme Court ruling in 1968, Terry v. Ohio, gave the police=20
<DIV></DIV>> >the authority to briefly detain, =
question and=20
conduct a pat-down search of=20
<DIV></DIV>> >someone whose activities - casing a =
Cleveland=20
storefront, in that case - gave=20
<DIV></DIV>> >rise to "reasonable suspicion," short =
of=20
probable cause for a formal arrest.=20
<DIV></DIV>> >There is no dispute that the encounter =
between=20
Mr. Hiibel and Deputy Dove was a=20
<DIV></DIV>> >"Terry stop" within the meaning of =
that=20
decision. The dispute in Hiibel v. Sixth=20
<DIV></DIV>> >Judicial District Court, No. 03-5554, =
is over=20
Mr. Hiibel's response, or lack of=20
<DIV></DIV>> >response.=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
Robert E.=20
Dolan, Nevada's deputy state public defender, told the justices=20
<DIV></DIV>> >that while the deputy "certainly had =
the right=20
to ask" Mr. Hiibel for his name,=20
<DIV></DIV>> >"equally so, Mr. Hiibel had the right =
not to=20
respond."=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
Justice=20
Antonin Scalia was openly skeptical. "What is the meaning of=20
<DIV></DIV>> >Terry?" he asked. Did Mr. Dolan mean =
that the=20
police were "allowed to ask=20
<DIV></DIV>> >questions but shouldn't expect =
answers?"=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
Yes, the=20
public defender replied; the state should not be permitted to=20
<DIV></DIV>> >criminalize silence or to "extract =
data from a=20
person."=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
Justice=20
Stephen G. Breyer appeared to agree, suggesting a rule under which=20
<DIV></DIV>> >the police can ask but the citizen =
does not=20
have to answer. "Everyone can=20
<DIV></DIV>> >understand that," Justice Breyer said, =
adding,=20
"Why complicate this thing?"=20
<DIV></DIV>> >Several Supreme Court decisions over =
the years=20
have suggested such a rule, but=20
<DIV></DIV>> >there has never been a formal opinion =
to that=20
effect.=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
One of=20
the Fourth Amendment questions in the case is whether a person's=20
<DIV></DIV>> >refusal to answer a seemingly benign =
identity=20
question can convert a police=20
<DIV></DIV>> >officer's "reasonable suspicion" into =
probable=20
cause to make an arrest. Only=20
<DIV></DIV>> >Justice Scalia appeared to endorse =
that=20
prospect. "I would think any reasonable=20
<DIV></DIV>> >citizen would answer," he observed.=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
One of=20
the many wrinkles in the case is that once a person is arrested,=20
<DIV></DIV>> >the right to remain silent is =
guaranteed by=20
the Fifth Amendment. To that extent,=20
<DIV></DIV>> >a person who falls under a lesser =
degree of=20
suspicion might be seen as having=20
<DIV></DIV>> >less constitutional protection. =
Another=20
wrinkle is that there is no claim that=20
<DIV></DIV>> >the police cannot run a check on a =
license tag=20
or - if the suspect is driving -=20
<DIV></DIV>> >ask to see the driver's license. In =
this case,=20
Mr. Hiibel's daughter was behind=20
<DIV></DIV>> >the wheel, Mr. Hiibel was outside the =
truck,=20
and the case was not treated as a=20
<DIV></DIV>> >traffic investigation.=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
As a=20
matter of Fifth Amendment analysis, one question is whether giving=20
<DIV></DIV>> >one's name is sufficiently =
"testimonial" to=20
invoke the constitutional protection=20
<DIV></DIV>> >against self-incrimination. "The =
question, it=20
seems to me, is whether a name=20
<DIV></DIV>> >itself has intrinsic testimonial=20
consequences," Justice Anthony M. Kennedy told=20
<DIV></DIV>> >Mr. Dolan, the public defender.=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
If it did=20
not, Mr. Dolan replied, "the government could require name=20
<DIV></DIV>> >tags."=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
In briefs=20
filed with the court, civil liberties groups warned that a=20
<DIV></DIV>> >rejection of Mr. Hiibel's claim to =
privacy=20
could open the door to such measures=20
<DIV></DIV>> >as national identification cards. One =
group,=20
the Electronic Privacy Information=20
<DIV></DIV>> >Center, said that government databases =
were=20
now of such "extraordinary scope"=20
<DIV></DIV>> >that "systems of mass public =
surveillance"=20
could result from a ruling that=20
<DIV></DIV>> >authorized "coerced disclosure of =
identity."=20
<DIV></DIV>> >=20
<DIV></DIV>> > =
But the=20
justices appeared eager to avoid a broad ruling and to confine=20
<DIV></DIV>> >their eventual decision to the =
specific=20
context of a suspected crime. "We're all=20
<DIV></DIV>> >concerned about national ID cards and =
all that=20
kind of stuff," 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>>=20
<DIV></DIV>>=20
=
<DIV></DIV>>----------------------------------------------------------=
--------------------=20
<DIV></DIV>> Free up your inbox with MSN Hotmail Extra =
Storage.=20
Multiple plans available.=20
_____________________________________________________ List services =
made=20
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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<HR>
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