06.21a. Hiibel Case; Police Questioning; Self Incrimination; USC 18-1001. A recent case, Hiibel, 542 U. S. ____ (2004), says that a state law requiring a person under suspicion to tell a policeman his name is not unconstitutional. This is an example of a perfectly reasonable law that no person reading the Constitution would possibly think was prohibited by it. Moreover, someone who knew of the tremendously intrusive questions the government is allowed to require people to answer for taxpaying, the census, environmental regulation-- *any* regulatatory area, really-- registering to drive or to build a house or to do any perfectly normal activity-- someone who knew of how intrusive our government is in these areas would wonder why someone can refuse to tell a policeman his name-- especially if the state legislature has passed a law specifically allowing that, and the state governor has signed it, most likely with 90%+ support from voters (who would oppose such a law except criminals?). Here is the situation:

JUSTICE KENNEDY delivered the opinion of the Court. The petitioner was arrested and convicted for refusing to identify himself during a stop allowed by Terry v. Ohio, 392 U. S. 1 (1968). He challenges his conviction under the Fourth and Fifth Amendments to the United States Con- stitution, applicable to the States through the Fourteenth Amendment.


Hiibel was charged with "willfully resist[ing], delay[ing], or obstruct[ing] a public officer in discharging or attempting to discharge any legal duty of his office" in violation of Nev. Rev. Stat. (NRS) �199.280 (2003). The government reasoned that Hiibel had obstructed the officer in carrying out his duties under �171.123, a Nevada statute that defines the legal rights and duties of a police officer in the context of an investiga- tive stop. Section 171.123 provides in relevant part:

1. Any peace officer may detain any person whom the officer encounters under circumstances which rea- sonably indicate that the person has committed, is committing or is about to commit a crime.


3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspi- cious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer..


NRS �171.123(3) is an enactment sometimes referred to as a .stop and identify. statute. See Ala. Code �15.5.30 (West 2003); Ark. Code Ann. �5.71.213(a)(1) (2004); Colo. Rev. Stat. �16.3.103(1) (2003); Del. Code Ann., Tit. 11, ��1902(a), 1321(6) (2003); Fla. Stat. �856.021(2) (2003); Ga. Code Ann. �16.11.36(b) (2003); Ill. Comp. Stat., ch. 725, �5/107.14 (2004); Kan. Stat. Ann. �22.2402(1) (2003); La. Code Crim. Proc. Ann., Art. 215.1(A) (West 2004); Mo. Rev. Stat. �84.710(2) (2003); Mont. Code Ann. �46.5.401(2)(a) (2003); Neb. Rev. Stat. �29.829 (2003); N. H. Rev. Stat. Ann. ��594:2 and 644:6 (Lexis 2003); N. M. Stat. Ann. �30.22.3 (2004); N. Y. Crim. Proc. Law �140.50(1) (West 2004); N. D. Cent. Code �29.29.21 (2003); R. I. Gen. Laws �12.7.1 (2003); Utah Code Ann. �77.7.15 (2003); Vt. Stat. Ann., Tit. 24, �1983 (Supp. 2003); Wis. Stat. �968.24 (2003). See also Note, Stop and Identify Statutes: A New Form of an Inadequate Solution to an Old Problem, 12 Rutgers L. J. 585 (1981); Note, Stop-and-Identify Statutes After Kolender v. Lawson: Exploring the Fourth and Fifth Amendment Issues, 69 Iowa L. Rev. 1057 (1984).

Eugene Volokh actually thinks that in terms of constitutional law, Justice Stevens's dissent is right:

To be sure, some Supreme Court cases have upheld requirements that people say various things that include their names -- file tax returns, for instance, identify themselves to other drivers when they're involved in an accident, or identify themselves when they're being booked for a crime at the police station. But those decisions have repeatedly rested on the theory that the identification is needed for non-law- enforcement purposes: collecting taxes, facilitating civil litigation, or keeping track of whom the government is keeping in jail. The purpose of Terry stops, on the other hand, is all about law enforcement.

Now maybe the majority's result is still right. Maybe, as some have suggested, the Fifth Amendment should simply bar the use of compelled statements themselves as evidence, but should let the government use as evidence the material that the government gathers indirectly based on compelled statements (the so-called "fruits" of the statement). This might be more consistent with the text of the Amendment. Or maybe there should be a separate rule for compelled self-identification, which one might say is less likely to offend the principles behind the privilege against self-incrimination, whatever those principles may be (there's a hot debate about that).

But it seems to me that on its own terms, the majority's argument isn't terribly persuasive; Justice Stevens seems to have the better of it.

I hope Professor Volokh means only to be taken literally ("on its own terms", "there's a hot debate about that") and doesn't think the law is actually unconstitutional, only that the Kennedy opinion is weakly written, which wouldn't surprise me. Justice Stevens argues that the problem with the law is that it only applies to suspects:

The Nevada law at issue in this case imposes a narrow duty to speak upon a specific class of individuals. The class includes only those persons detained by a police officer "under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime"[footnote] -- persons who are, in other words, targets of a criminal investigation. The statute therefore is directed not "at the public at large," but rather "at a highly selective group inherently suspect of criminal activities".

Thus, Justice Stevens says it would be constitutional to require everybody to carry a placard listing their names around their neck, but not to require somebody for whom there is reasonable suspicion that he committed a crime. Only a very strange and stupid constitution would say that, or a strange (if not stupid) judge. The idea is that it is okay for the state to impose a burden on regular citizens, but not on criminals, because it would increase the chances of criminals being punished. The Fifth Amendment has become in the hands of our judges a tool of crime.

Justice Breyer, in a dissent to which Souter and Ginsburg joined, was shocked at the implications of upholding the Nevada law:

Can a State, in addition to requiring a stopped individual to answer "What's your name?" also require an answer to "What's your license number?" or "Where do you live?"

Sure-- of course-- why not? A State can and does currently require millions of people to reveal those things--- plus their earnings, their medical bills, and even their criminal earnings for tax purposes. And as I discussed on March 8, 2004 in connection with Martha Stewart's conviction, the federal government's USC 18-1001 makes it a felony to conceal facts from police, even if no crime has been committed:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both.

So it really is true that many judges like to protect criminals, but have little concern for civil liberties or ordinary citizens. I think it is because they more of criminals and defense lawyers than they do ordinary people, and hence have more sympathy for them. Also, lawyers are trained to be very worried about false convictions but not about procedurally valid convictions for violation of unjust laws, and they are taught to to positively delight in burdensome regulations.

Eugene Volokh notes in a separate post that

Interestingly, even the dissent doesn't squarely argue against the majority's reasoning about the importance of the government interests, or the majority's implied judgment that the intrusion on Fourth Amendment interests isn't very severe. It relies chiefly on concurrences, on one tangential majority dictum (from Wardlow) and one square statement in a majority opinion (from Berkemer) that is nonetheless still dictum --which is to say, a statement that wasn't necessary to the decision of the past case, and thus isn't binding precedent.

Fortunately, by a 5-4 majority the Court upheld the Nevada law. Note, however, Justice Kennedy's application of the Incorporation Doctrine-- that rascally doctrine that Justice Thomas criticized recently as applied to the establishment of religion. This is a less rascally application of it, since the 5th Amendment was not specifically designed to protect states rights but rather is neutral in that dimension, but it is another weak point for the dissent.

Some day I'd like to write a formal model of talking to policemen, and I hope these notes will be useful.

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