Case closed? Not quite.

In Hiibel v. Sixth, Judicial District Court of Nevada, (1) the Supreme Court resolved a question that has long begged for an answer: Can a person stopped on reasonable suspicion of criminal activity (known as a Terry stop) be compelled, on pain of criminal prosecution, to identify himself? The Supreme Court said yes, but then qualified its holding with confusing caveats that will cause considerably more litigation than the issue it resolved.

In May 2000, police in Humboldt County, Nevada, were called to investigate a report of a man who was allegedly assaulting a woman. When an officer arrived at the scene, he saw a man standing by a truck parked on the side of the road with a woman inside. Skid marks behind the truck suggested that it had come to a sudden stop. The man appeared intoxicated.

The officer asked for identification but the man refused to tell him his name. After, asking and being refused 11 times, the officer arrested the man, later identified as Larry Hiibel. Hiibel was convicted of obstructing a police officer: Under Nevada law, "a peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing, or is about to commit a crime." The statute also says that "any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer." (2) The Nevada courts upheld the conviction, as did the Supreme Court by a 5-4 vote.

Justice Anthony Kennedy; writing for the majority, noted that 20 states besides Nevada have "stop and identify" statutes (3) many of them based on the Model Penal Code. (4) In the past, the Court has held that "stop and identify" statutes that are not based on reasonable suspicion

of criminal activity are unconstitutional. (5) Here, however, the officer was acting on reasonable suspicion, making this a legitimate "stop" under Terry v. Ohio. (6) Nevada courts have also held that the suspect does not have to produce any documents and can just tell the officer his or her name. (7) But Hiibel argued that even this requirement violated both the Fourth and Fifth amendments.

The limits of Terry

Hiibel argued that forcing him to disclose his identity exceeded the limited "stop" authorized by Terry and the Fourth Amendment. The Court observed that simply asking individuals to identify themselves "does not, by itself, constitute a Fourth Amendment seizure," (8) and that a principal purpose of the Terry, stop is ascertaining a suspect's identity. (9) But, the Court acknowledged, "it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer. (10)

In fact, in Terry itself, Justice Byron White wrote in a concurring opinion that the suspect is "not obliged to answer [questions], answers may not be compelled, and refusal to answer furnishes no basis for an arrest." (11)

A majority adopted White's view in Berkemer v. McCarty (12) that someone detained during a Terry stop "is not obliged to respond" to questions. But the majority in Hiibel pointed out that the Nevada statute does not obligate a suspect to answer questions: On the contrary, it is specifically limited to requiring only that the suspect identify himself or herself. Since a request for identification "does not alter the nature of the stop itself, (13) there is no Fourth Amendment problem.

This is clearly correct. The Fourth Amendment forbids unreasonable searches and seizures. If it is reasonable to stop and detain a person and request his or her identity, as Terry held, requiring that he or she comply does not violate the Fourth Amendment because it does not lengthen or intensify the seizure.

The Fifth Amendment issue, however, is more difficult. The Court first rejected the government's argument that disclosing one's name is "non-testimonial" and therefore outside the reach of the Fifth Amendment. It held that furnishing one's name or identifying documents could be "testimonial" because to do so may "relate a factual assertion or disclose information." (14)

The Supreme Court concluded, however, that "even if these required actions are testimonial ... petitioner's challenge must fail because in this case disclosure of his name presented no reasonable danger of incrimination." (15)

The Court quoted Kastigar v. United States to support its view that the Fifth Amendment "protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be used." (16)

In Hiibel's case,

   petitioner's refusal to disclose his name was
   not based on any articulated real and appreciable
   fear that his name would be used
   to incriminate him, or that it would 'furnish
   a link in the chain of evidence
   needed to prosecute' him. As
   best we can tell, petitioner refused
   to identify himself only because
   he thought his name was
   none of the officer's business. (17)

Finally, the Court noted that "answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances." (18) Still, "a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual in a separate offense." (19) If that happens, the Court might decide that the Fifth Amendment applies. It is this caveat that will cause trouble in the future.

Justice John Paul Stevens dissented on Fifth Amendment grounds: The Nevada statute's provision that the suspect doesn't have to answer any question except those requesting his or her name is based on the Fifth Amendment privilege against self-incrimination, and Stevens saw no Fifth Amendment reason to distinguish the identification question from any other.

Since disclosure of identity could "be used in a criminal prosecution or could lead to other evidence that might be so used" or could "furnish a link in the chain of evidence needed to prosecute the claimant," (20) the Fifth Amendment applies. In short, a police officer can ask a variety of questions during a Terry stop, but the defendant does not have to answer any of them.

Justice Stephen Breyer and two other justices dissented, purportedly on Fourth Amendment grounds. Breyer pointed to White's concurring opinion in Terry and to the Court's adoption of it in Berkemer, arguing that while a police officer can ask for a suspect's identity, the suspect can refuse to provide it. Breyer conceded, however, that the underlying reason for this limitation on what the police may do during a Terry stop is based on the Fifth Amendment. (21) Breyer also found the majority rule too confusing:

   As the majority points out, a
   name itself--even if it is not
   "Killer Bill" or "Rough-'Em-Up-Harry"--will
   sometimes provide
   the police with a link in the chain
   of evidence needed to convict
   the individual of a separate offense....
   How then is the police
   officer in the midst of a Terry stop
   to distinguish between the majority's
   ordinary case and this special
   case where the majority, reserves
   judgment? (22)

Although Breyer needs to brush up on his knowledge of criminal street names, his and Stevens's objections point out a fundamental flaw in the majority opinion. The flaw is not in the holding, but in the caveats placed on it.

The link in the chain

The dissenters are right that revealing one's identity can be "a link in the chain of evidence" leading to conviction for a separate offense or the instant offense. The first thing the police do with a defendant's name is run it through a computer to check for any outstanding warrants, a criminal record, or any other pertinent information. If "link in the chain" means "some thing that helps the government convict you," then identity certainly is a link.

Consequently, if the caveats in the majority opinion are taken at face value, the police will be able to compel someone's self-identification only in an unusual case, like this one, where the person's "refusal to disclose his name was not based on any ... appreciable fear that his name would be used to incriminate him." (23) And, as Breyer points out, it will be impossible for police officers to know in advance whether a suspect's identity will incriminate him or her.

The Court should have made it clear that routine administrative questions such as name and address--and probably only those two--always fall outside the self-incrimination privilege, as long as they are used only for investigative or administrative purposes. (24) This differs from testimonial use, which takes place only in court. (25)

Ordinarily, on-the-street identification will be achieved not by the suspect's words but with official documentation such as a driver's license or Social Security card. However, if the suspect's identity does become relevant in a criminal prosecution, the fact that tie or she revealed it to the police officer, whether verbally or with a document, cannot be used against the suspect because, in this context, the disclosure becomes testimonial.

Finally, since suspects are effectively immunized from testimonial use of their answers, lying about their names or addresses could be used against them, as can a lie by any immunized witness. This may have been what Kennedy was trying to say, but it isn't clear from the opinion. (26)

In the past this issue rarely arose, since most people complied with a police request to identify themselves. (27) Now that people are obliged to comply--unless doing so gives the police "a link in the chain of evidence needed to convict"--defense lawyers will routinely move to suppress the evidence of the defendant's sell-identification on the grounds that the police used it to find out further information about the defendant, which they used to arrest and ultimately convict him or her of this or another crime. Then they'll move to dismiss, because the subsequent investigation was fruit of this newly created poisonous tree.

After much confusion and litigation, the Court will have to revisit the issue and clarify that only testimonial use of the response is prohibited, not investigatory use; whether the name provides a link in the chain of evidence is immaterial.

In short, Kennedy should have reworked this opinion so be could declare, "Look, Ma: No caveats!"

Notes

(1). 124S. Ct. 2451 (2004).

(2). Id. at 2455 (citations omitted).

(3). Id. at 2456.

(4). MODEL PENAL CODE [section] 250.6 (2001). This provision, defining the crime of "loitering or prowling" provides that "a peace officer shall prior to any arrest ... under this section afford the actor an opportunity to dispel any alarm ... by requesting him to identify himself and explain his presence and conduct." Thus it doesn't exactly require the actor to identify himself--as did the tentative draft, quoted by the Supreme Court. Hiibel, 124 S. Ct 2451,2456.

(5). Kolendar v. Lawson. 461 U.S. 352 (1983); Brown v. Texas, 443 U.S. 47, 52 (1979).

(6). 392 U.S. 1 (1968).

(7). Hiibel, 124 S. Ct. 2451. 2457.

(8). Id. at 2458 (quoting I.N.S, v. Delgado, 466 U.S. 210,216 (1984)).

(9). Id. at 2459 (citations omitted).

(10). Id. at 2458.

(11). Id. at 2458-59 (citation omitted).

(12). 468 U.S. 420,439 (1984).

(13). Hiibel, 124 S. Ct. 2451, 2459.

(14). Id. at 2460 (citation omitted).

(15). Id.

(16). 406 U.S. 441, 445 (1972).

(17). Hiibel, 124 S. Ct. 2451, 2461 (quoting Hoffman v. United States, 341 U.S. 479,486 (1951).)

(18). Id.

(19). Id.

(20). Id. at 2464 (Stevens, J., dissenting) (citations omitted).

(21). Id. at 2464, 2465 (Breyer, J., dissenting).

(22). Id. at 2166 (Breyer, J., dissenting).

(23). Id. at 2461.

(24). See Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990) (holding that "routine booking questions," including name and address. Fall outside the Fifth Amendment privilege). After Muniz, it is also clear that if the suspect's answers are slurred or incomprehensible, he or she could be convicted of drunk driving, public drunkenness, or other offenses.

(25). As the Court has repeatedly held, the Fifth Amendment is a "trial right." See, e.g., Chavez v. Martinez, 538 U.S. 760,767 (2003).

(26). I am proposing an automatic "act of production immunity," with which the Supreme Court is familiar in the context of production of documents. The documents' contents can be used against the defendant, but the fact that he or she produced them cannot. See, e.g., United States v. Hubbell, 530 U.S. 27 (2000). But the more complicated rules governing production of documents should not apply to disclosure of name and address

(27). At least two earlier cases raised this issue. In Carey V. Nevada Gaming Control Board, 279 F.3d 873 (9th Cir. 2002), the Ninth Circuit struck down a Nevada statute, creating a conflict with the Nevada Supreme Court's decision in Hiibel. In Oliver v. Woods, 209 F.3d 1179 (10th Cir. 2000), the Tenth Circuit held that refusing to identify oneself during a "stop" could lead to probable cause for arrest.