By Beverly A. Ginn, Principal Assistant City Attorney and Legal Advisor to the Tucson Police Department, Tucson, Arizona
he officer in this case was responding to a caller who reported seeing an assault inside a truck traveling down the road. Police located the truck, which had by then pulled off the road. A man, Larry D. Hiibel, was standing by the vehicle and a young woman was inside. The officer approached and, pursuant to a Nevada law, asked Hiibel if he had any identification. Hiibel refused to provide identification.1 He was then arrested, charged with obstructing a public officer in the discharge of any legal duty of his office, convicted, and fined $250.
In an opinion released on June 23, 2004, Hiibel v. Sixth Judicial District Court of Nevada, the U.S. Supreme Court upheld this arrest and conviction.2 It is important for officers to know that, without regard to the various misrepresentations of the national media, the Court's holding in Hiibel is very narrow.3 The Court held that, during a Terry stop (in other words, when the officer has reasonable suspicion that criminal activity is ongoing), an officer may ask a person provide his or her name. If there is a state law that requires that the person provide his or her name, anyone who fails to comply with the request may then be arrested.
Vagrancy laws that permitted officers to require people to demonstrate that they had good reason to be where they were, engaged in whatever conduct they were engaged in, were struck down by the Supreme Court in Papachristou v. Jacksonville, 405 U.S. 156 (1972). The Court found vagrancy statutes to be unconstitutionally vague, as they provided police officers with too much discretion regarding whom to stop and question and what standards to apply before making an arrest.
Generalized stop-and-identify statutes later suffered the same fate. In Brown v. Texas, 443 U.S. 47 (1979), a Texas stop-and-identify statute was found to be unconstitutionally vague because it permitted stops that were not based on the constitutionally mandated standard of reasonable suspicion.
The latest Supreme Court review of a stop-and-identify statute occurred in Kolender v. Lawson, 461 U.S. 352 (1983). The California stop-and-identify statute was at issue in that case. It permitted stops only on the basis of reasonable suspicion, thereby curing the problem that had the troubled the Court in Papachristou and Brown. But because there was no definition of the required identification in the statute, the Court struck the statute down as unconstitutionally vague.
Nevada Statutes at Issue in Hiibel
Two Nevada statutes were involved in this case. The first, the stop-and-identify statute, Nevada Revised Statutes 171.123, authorizes a police officer to detain any person the officer has reasonable suspicion has committed, is committing, or is about to commit a crime. The statute provides that a person who is detained must identify himself but is not required to answer any other questions asked by the officer. The statute has been interpreted by the Nevada Supreme Court as requiring only that the person state his or her name to the officer, either verbally or by some other means; there is no requirement that the person provide any document to the officer.5
The second statute, Nevada Revised Statutes 199.280, makes it a crime to resist, delay, or obstruct a public officer in the discharge of his office. The state trial court in this case held that by refusing to identify himself Mr. Hiibel had obstructed the officer in the performance of his office.
Isn't This an Illegal Seizure?
The Court found no Fourth Amendment violation in the conduct of the officers. According to the Court, the call received by the police provided the necessary reasonable suspicion upon which an officer could detain Mr. Hiibel for investigation of criminal activity.
Nor was the Supreme Court concerned with the request that Mr. Hiibel identify himself. The Court noted that asking questions is an ordinary and important part of any police investigation, including asking a person for identification. The mere request for identification does not implicate the Fourth Amendment.6 Citing a series of Supreme Court decisions, the Court stated that it is "clear that questions concerning a suspect's identity are a routine and accepted part of many Terry stops" and that "obtaining a suspect's name in the course of a Terry stop serves important government interests." The Court noted that a person's name may make the officer aware of whether the offender is wanted or has a history of violence or mental illness or a history of committing a particular type of crime:
The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop. . . . The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop. . . . A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.7
What About Hiibel's
Right to Remain Silent?
The Fifth Amendment provides that no person may be compelled to be a witness against himself. Is Hiibel permitted, then, to refuse to identify himself under the Fifth Amendment?
Not according to the Court. The privilege against self-incrimination applies only to a communication that is testimonial, compelled, and incriminating. Clearly, asking a person to state his or her name or to produce proof of identity is conduct that is testimonial in nature. Just as clearly, the Nevada statute compels the testimony-the statement to an officer of a person's name.
But is stating one's own name an incriminating act? The Court holds that "in this case disclosure of [Hiibel's] name presented no reasonable danger of incrimination." The mere possibility of incrimination is insufficient to establish Fifth Amendment protection; to be protected, the danger of incrimination must be real and appreciable. The Court found no evidence that disclosure of his name would incriminate Hiibel:
While we recognize [Hiibel's] strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature's judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him.8
What Hiibel Means and Does
Not Mean for Law Enforcement
Hiibel affirms that during a lawful Terry stop an officer may ask the detained person to state his or her name. Hiibel also affirms that in states that have statutes that make it a crime for a person to refuse to identify himself on demand during a Terry stop, a person may be arrested for refusing to do so.
It is important to note what Hiibel does not do. It does not extend or expand the scope of a permitted Terry stop or provide a new or different basis on which to stop and detain persons. It does not permit officers to demand proof or documentation of identity. It does not permit officers to randomly stop persons and demand that they identify themselves.
Bringing a Stop-and-Identify
Statute to a Jurisdiction Near You
Law enforcement officials who work in states that do not have stop-and-identify statutes may wish to work with their legislature to adopt one. To comply with Hiibel, such statutes should be narrowly drafted, so that they apply only in the context of Terry stops and require only a verbal statement of identity.
1 View a video of the Hiibel stop at (www.papersplease.org/hiibel/index2.html).
2 Hiibel v. Sixth Judicial District Court of Nevada, ___ U.S. ___, 124 S. Ct. 2451 (2004).
3 "Court: No Right to Keep Names from Police; Supreme Court Rules People Don't Have Constitutional Right to Refuse to Give Police Their Names," Associated Press; "Court: If Police Ask, You Must Give Your Name," Christian Science Monitor.
4 At the time of this opinion, such stop-and-identify statutes were in effect in 21 states.
5 Hiibel v. Sixth Judicial District Court of Nevada, 59 P.3d 1201, 1206-1207 (2002).
6 Hiibel v. Sixth Judicial District Court of Nevada, ___ U.S. ___, 124 S. Ct. 2451, 2457 (2004).
7 Id., at 2459.
8 Id., at 2461.
This column is prepared monthly by members of IACP's Legal Officers Section. Interested section members should coordinate their contributions with Randy Means at (email@example.com).