High Court Weighs the Right to Stay Silent

The Supreme Court struggled Monday with a question that has gone unanswered for years: Does a person on the sidewalk have a right to say nothing when approached by a police officer?

In the past, the court has ruled that individuals who are arrested and taken into custody have a right to remain silent. And it has implied in past decisions that people who are not arrested are free to walk away and ignore a police officer.

But every day, police officers ask individuals to identify themselves, and it is a crime in California and most other states to refuse.

The case argued Monday, Hiibel vs. Nevada, would clarify the rules governing everyday encounters between police and pedestrians. When motorists are in their cars, they can be stopped for violating traffic laws and forced to show a driver’s license. But police do not have the same authority when they approach a person walking on the sidewalk or sitting on a park bench.

In May 2000, Larry D. Hiibel was standing on the side of a road near Winnemucca, Nev., when an officer stopped and asked him to identify himself. Deputy Lee Dove was checking on a motorist’s report of a man in a pickup hitting a female passenger. Hiibel was standing near a truck similar to the one described in the report. A woman was inside. When Hiibel refused to give his name after 11 requests, Dove arrested him for resisting an officer, a misdemeanor. Hiibel was convicted and fined. He appealed.

On Monday, Hiibel’s lawyer asked the high court to rule that the Constitution protects a person’s right to say nothing.

“Free citizens ... don’t have an affirmative obligation to give their name,” Robert E. Dolan of Carson City, Nev., told the court. Otherwise, he said, Americans could be required to wear color-coded name tags or Congress could adopt a system of national identification cards.

Although the justices were not interested in supporting national identification cards, several said they also were not ready to decide that suspicious persons were free to ignore the police.

If officers cannot ask questions and demand answers from people at a crime scene, asked Chief Justice William H. Rehnquist, “how are they ever going to solve a crime?”

Suppose an officer comes upon a suspicious person hanging around a jewelry store at midnight, said Justice Antonin Scalia. In the past, the court has said that officers may stop suspicious people and frisk them to make sure they do not have weapons. But the court has not ruled whether those individuals must give their name when asked.

“He can’t say, ‘What are you doing here?’ ” Scalia asked, incredulous. “It’s a suspicious character and he says, ‘I ain’t talking.’ And the officer has to turn on his heel and walk away! ... Why isn’t it a perfectly reasonable requirement to give his name?”

Justice Ruth Bader Ginsburg said she did not see a problem with a requirement to provide identification to authorities. “There are many situations where you are obliged to give your name,” she said, including to banks, businesses or tax collectors. Because a name is usually seen as a neutral fact, not an incriminating statement, “we have treated names differently.”

Other justices noted that the court has said that people who are not accused of a crime are free to walk away.

As an officer, “you can ask, but they don’t have to answer,” said Justice Stephen G. Breyer, summarizing the court’s past statements. “Why retreat from that?”

The Nevada courts upheld the police power to require suspects to give their names. However, the U.S. 9th Circuit Court of Appeals took a contrary view, ruling that a casino gambler from Laughlin, Nev., could not be forced to identify himself to authorities unless he was charged with a crime.

The 4th Amendment to the Constitution forbids unreasonable searches and seizures by police. The 5th Amendment, in its clause against self-incrimination, says a person cannot be forced “to be a witness against himself.” Both provisions were cited by Hiibel’s lawyers.

The Bush administration and Nevada state lawyers urged the court to rule that when police have some reason to suspect wrongdoing, they can stop a pedestrian and require him to identify himself.