Unusual Supreme Court case #2

This little-known case carries serious implications for privacy rights in a time of increasing government encroachments. From Tuesday's New York Times:

A Nevada rancher's refusal four years ago to tell a deputy sheriff his name led to a Supreme Court argument on Monday on a question that, surprisingly, the justices have never resolved: whether people can be required to identify themselves when the police have some basis for suspicion but lack the probable cause necessary for an arrest.

"The answer," the Times said, "appeared elusive."

What happened in a nutshell is that Nevada police had received a report from a passing motorist that a man was hitting a woman in a car. A deputy sheriff found Larry Hiibel standing by his pickup truck on the side of the road. His adult daughter was in the driver's seat.

The deputy demanded Hiibel identify himself. Hiibel, saying he had done nothing wrong, refused. The deputy kept repeating the demand, Hiibel kept refusing, inviting the deputy to arrest him if he was so sure Hiibel had done something. The deputy did.

Hiibel was charged under a Nevada law that requires people to identify themselves to the police if they are stopped "under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime." No other charges were ever filed. He was convicted of a misdemeanor but appealed on the grounds that the law was in violation of the Fourth and Fifth Amendments' guarantees against unreasonable searches and self-incrimination. The State Supreme Court rejected the argument and Hiibel went to federal court.

Now, the authority to make such a stop is not in question. In 1968, the Supreme Court

gave the police the authority to briefly detain, question and conduct a pat-down search of someone whose activities ... gave rise to "reasonable suspicion," short of probable cause for a formal arrest.

Such incidents are now known as "Terry stops" after the case, Terry v. Ohio. According to the Times, there was no dispute that this was a Terry stop. The issue is: asked for identification, could Hiibel refuse?

Robert E. Dolan, Nevada's deputy state public defender, told the justices that while the deputy "certainly had the right to ask" Mr. Hiibel for his name, "equally so, Mr. Hiibel had the right not to respond."

Justice Antonin Scalia was openly skeptical. "What is the meaning of Terry?" he asked. Did Mr. Dolan mean that the police were "allowed to ask questions but shouldn't expect answers?"

Yes, the public defender replied; the state should not be permitted to criminalize silence or to "extract data from a person."

Justice Stephen G. Breyer appeared to agree, suggesting a rule under which the police can ask but the citizen does not have to answer. "Everyone can understand that," Justice Breyer said, adding, "Why complicate this thing?" Several Supreme Court decisions over the years have suggested such a rule, but there has never been a formal opinion to that effect.

As is usual, the justices appeared eager to avoid a sweeping decision, preferring to focus narrowly on the issues of the particular case. Yet there are serious possibilities that such a focus ignores. Particularly, Nevada contends that a name is "a neutral fact" and therefore neither incriminating nor an undue invasion of privacy. But as the Electronic Privacy Information Center said in a friend of the court brief,

government databases were now of such "extraordinary scope" that "systems of mass public surveillance" could result from a ruling that authorized "coerced disclosure of identity."

Between cases of identify theft and people being labeled terrorists based on a shared name (or, in some case, merely a similar one), no name can be considered "a neutral fact" but must rather be thought of as a potential doorway to a mass of personal - and sometimes seriously inaccurate - information.

There are a couple of other points about this that I want to mention. First is that, as the Times notes, there was apparently no argument over whether this was a Terry stop. Frankly, I would have challenged that contention.

There is a videotape of the incident taken by the police from inside the squad car. You can watch it on a website Hiibel set up about the case. Recall that this arose because of a report of a man hitting a woman. When the police arrived, they found nothing happening. So what were the activities leading to "reasonable suspicion?" In the tape, the deputy never asks anything about what's going on. He never approaches the truck to ask Hiibel's daughter, clearly visible in the video in the driver's seat, if she was all right - or anything else. That is, he never made any attempt to determine if in fact anything had transpired. So where is the "reasonable suspicion?"

Perhaps Hiibel didn't raise that challenge because he wanted to focus on the constitutional issues. But there is another point which I think is clearly relevant but doesn't seem to be under consideration. In the video, the deputy does not ask Hiibel for his name, he tells Hiibel to show identification - and that is something quite different. I'm aware of no law that says we have to have personal identification with us at all times (this does not apply to things like having a driver's license while driving), but a finding in favor of Nevada would establish that as a de facto requirement.

Shall we slippery slope for a moment? The Court rules for Nevada. Someone gets stopped, gives their name when ordered to, but the police officer, questioning if that's their real name, relies on Terry to detain them to check. Then, relying on the (possible) Hiibel decision, the officer demands positive ID. The person shows them a driver's license with a picture. The police officer wants to take the license back to the their car. The person refuses, saying "You wanted to see ID. You have now seen a photo ID with an address. That's all you get." The officer arrests them, claiming their lack of cooperation has produced "reasonable cause." What does the Court say then?

You may think I'm jumping several steps ahead, but I have to ask: If Hiibel loses, how far are we from empowering police to require our cooperation in running full personal background checks on us whenever they think we're looking at them funny?