Justices to Weigh a New Right to Remain Silent

The Supreme Court said Monday that it would consider creating a new right to remain silent -- this time for people who are stopped, but not arrested, by police.

A stubborn Nevada man who was standing along a roadway when an officer approached him will get a hearing to decide a basic question that the high court has never squarely answered: Does the Constitution give a person the right to refuse to identify himself to the police?

Typically, a motorist who is stopped by the police is required by state law to show a driver’s license. Similarly, passengers at an airport or individuals visiting a government office building must identify themselves to security personnel.

But the law is not clear on whether others, including ordinary pedestrians, may be required to identify themselves to the police.

“It is inimical to a free society that mere silence can lead to imprisonment,” said a lawyer for Larry Hiibel, the Nevada ranch hand who refused to give his name.

A deputy sheriff patrolling near Winnemucca, Nev., responded to a call that the driver of a pickup was seen hitting a woman in the passenger’s seat. The deputy spotted Hiibel standing next to a GMC truck similar to the one that had been described.

When asked for his identification, Hiibel refused. Eleven times, the deputy asked the man to give his name or show identification. Based on Hiibel’s manner, the deputy suspected that the man was intoxicated and that he might have struck the passenger, who was his grown daughter.

In the end, however, the deputy arrested Hiibel for resisting a police officer and obstructing an investigation by refusing to give his name. He was not charged with any other offense.

Last year, the Nevada Supreme Court, in a 4-3 decision, upheld Hiibel’s conviction and a $250 fine.

The court’s majority said that officers, as well as law-abiding citizens, would be placed in danger if the police could not require people behaving suspiciously to identify themselves.

“The suspect may be a felon or wanted for an outstanding arrest warrant. Perhaps that person is a sex offender,” wrote Nevada’s then-chief justice, Cliff Young.

“More importantly, we are at war against enemies who operate with concealed identities, and the dangers that we face as a nation are unparalleled,” he added, in a reference to the war on terrorism.

However, in his appeal to the U.S. Supreme Court, Hiibel’s public defender, James Logan Jr., pointed out that the U.S. 9th Circuit Court of Appeals had taken the opposite view.

“Compelling an individual to identify himself violates the 4th Amendment” and its ban on unreasonable searches and seizures, the circuit court said last year, unless officers have enough evidence to arrest the person. That ruling upheld a lawsuit filed by a gambler who was taken from a casino in Laughlin, Nev., and arrested for refusing to identify himself to a state gaming agent.

On Monday, the Supreme Court announced it would hear the case of Hiibel vs. Nevada to decide whether the Constitution barred police “from compelling people to identify themselves during a police investigation” if the officers did not have “probable cause” to make an arrest. The justices said they would consider the 4th Amendment’s limit on “unreasonable seizures” and the 5th Amendment’s right against self-incrimination.

Conrad Hafen, a deputy attorney general for Nevada, said he was pleased that the high court had agreed to resolve the matter.

“Our officers have been caught between a rock and a hard place. Our state court says you can arrest someone who refused to identify himself, but the federal court says you can be sued if you do that,” he said.

“We certainly think it is reasonable for an officer to ask a person to identify himself. And allowing an individual to withhold his name will make it much more difficult to investigate a suspicious person.”

If officers cannot obtain a person’s name, they may go ahead and arrest the individual and take him to jail, Hafen said.

“I think this [obtaining an identification on the street] prevents an innocent person from being arrested and a wanted criminal from being let go,” Hafen said.

The Supreme Court long has struggled to draw a line between the power of the police to look for possible wrongdoing and the privacy rights of individuals walking on the street.

In 1968, the justices took up the case of two men seen walking nervously in front of a store -- “casing the joint,” as one justice put it. In what turned out to be a famous ruling, the Supreme Court said in Terry vs. Ohio that the police were free to “stop and frisk” a person acting suspiciously on a sidewalk. Since then, such “Terry stops” have become routine and have been cited in dozens of rulings.

The high court said officers could check possible suspects for weapons and ask the individuals what they were doing. However, the court also insisted that these searches must be limited; officers are not generally free to feel in the pockets or clothing of the possible suspect in a search for contraband such as drugs.

In an aside, the justices also suggested that a possible suspect need not answer an officer’s questions.

Now, 35 years later, the court will decide the question that went undecided then.

The clearest test came 20 years ago in a challenge to California’s anti-loitering law. The law stated that any person who “loiters or wanders upon the streets” and “refuses to identify himself” could be charged with disorderly conduct. In a 7-2 decision, the high court declared that open-ended law unconstitutional because it gave the police too much power to arrest individuals who had done nothing wrong.

Rather than spelling out a true crime, the anti-loitering law “encourages arbitrary enforcement” by allowing arrests of innocent loiterers, said Justice Sandra Day O’Connor. More recently, the 9th Circuit relied on that ruling as a basis for saying that people acting suspiciously could refuse to identify themselves to the police.