The Supreme Court hears oral argument this morning in the “drunken cowboy” case, a privacy dispute that has the conspiracy nuts in a tailspin and me in trouble with my Civil Procedure professor. The issue in Hiibel v. Sixth Judicial District Court of Nevada is variously described by the amicus briefs and the editorialists as whether the police have the right to demand your “papers“; mandate national identity cards; and impede ordinary citizens’ freedom to roam free. But as the justices on the Supreme Court weigh in today, it’s clear most of them don’t see the case this way. One after another dismisses the national ID card debate as not at issue here. One after another suggests—and to a rather frightening degree, at times—that this case has nothing to do with innocent people, or ordinary people. This case has to do with “suspicious” people, and—as you were no doubt aware—suspicious people are not like you or me.
Cowboy Dudley Hiibel is challenging a Nevada statute, NRS 171.123 (3), which says the police can require someone detained pursuant to a so-called “Terry stop” to identify themselves. The Terry stop—cooked up in a 1968 case, Terry v. Ohio—carved out an exception to the old Fourth Amendment requirement that people can’t be searched and seized absent “probable cause” to believe they’d committed a crime. If “probable cause” signified the level of police commitment necessary for a meaningful relationship with a criminal defendant, Terry authorized the one-night-stand, giving cops the right to initiate quickie detentions—including a brief, unerotic frisk—of folks who are sort of suspicious but not suspicious enough to justify an arrest. Several concurring opinions in Terry said that cops could ask questions during these brief encounters, but suspects had no obligation to answer. But in several cases over the years, the high court hasn’t squarely addressed that the rule. The Nevada law, on the other hand, says the failure to provide your name during these stops is illegal. So, here we are.
Nevada police, responding to a report of a man beating a woman in a truck, saw what they believed to be that truck on the side of the road. Hiibel was leaning on the passenger side having a smoke. His teenage daughter was in the cab. Hiibel seemed drunk. It was all captured on video, so you can play along at home. The crucial bit is where Hiibel is asked 11 times to identify himself, and—not knowing why the cop is asking—he refuses. The cops arrested him and charged him for that refusal. Hiibel challenged the law as unconstitutional. The Nevada Supreme Court voted 4-3 that there is nothing unconstitutional about a law forcing suspects in a Terry stop to provide their name, in light of the pressing government need to identify bad guys and the minimal privacy intrusion in sharing your name. Hiibel appealed that decision.
The court has two grounds on which to declare the Nevada law unconstitutional—the Fourth Amendment’s guarantee againstunreasonable searches and seizures and the Fifth Amendment’s guarantee against self-incrimination. Robert E. Dolan, Hiibel’s public defender from Winnemucca, Nev., advances both. Justice Sandra Day O’Connor wants to know why this is different from any traffic stop—where the police have the right to demand your license. The answer is that Hiibel wasn’t driving—he was outside the truck, and the notion of implied consent (“We let you drive cars/ride airplanes/cross borders in exchange for the right to demand your ID”) is not at issue here. O’Connor (and the rest of America) wants to know if the fact that Hiibel was drunk counts for anything. Dolan argues that there was never a court finding that he was driving drunk.
Justice Antonin Scalia betrays his wholehearted suspicion of dangerously “suspicious” people with a question about the whole purpose of Terry stops: “Can’t you stop someone suspicious, to see what’s going on?” he asks. Dolan says policemen may ask, but no one has to answer. Chief Justice William H. Rehnquist asks if one has a similar right to refuse to be frisked by a policeman during a Terry stop (sort of an Antioch College rule for pat-downs). Dolan doesn’t think so. Justice Anthony Kennedy then asks whether policemen have the right to demand the names of witnesses to, say, a fatal bank shooting. Dolan says no.
Justice Ruth Bader Ginsburg similarly points out that it’s a bit odd that the police can run the vehicle’s license plates but not ask your name. Rehnquist adds: “You can ask if he’s the registered owner of the car, but you can’t ask his name?” All this just shows how complicated this case is, simply because Hiibel was leaning on a car, as opposed to walking down the street. We keep dancing along the edges of implied consent—which makes for complicated hypotheticals.
Scalia says that a rule allowing folks to refuse to identify themselves “assumes no responsibility on the part of citizens.” Revealing his own take on the fundamental badness of generally suspicious people, he adds, “I can’t imagine any responsible citizen who would object to giving his name.” Scalia just hasn’t spent enough time in Winnemucca, is all.
Ginsburg and Dolan exhibit confusion about whether Hiibel’s daughter was in the passenger or driver’s side of the truck. The Nevada Supreme Court indicated she was on the passenger side, suggesting that the drunk guy was driving. But Dolan insists she was driving and “slid over.” Scalia then expresses amazement that a cop performing a Terry stop would have to “turn on his heel” and walk away if a suspect said, “I ain’t talking,” even if he was “hanging around a jewelry store at 2 a.m.” Dolan helpfully suggests, “Maybe he was purchasing jewelry for his paramour and doesn’t want his wife to know.” Scalia shoots back that this is “possible but not probable.” Heh heh.
Kennedy circles back to the Fifth Amendment claim, saying the rule should be that offering up one’s name is not self-incriminatory because it’s “not probing memory or perception,” it’s “just a fact.”
The chief justice then wonders what happens when the police walk onto a murder scene, find eight or nine people there, and a body on the floor. “Can he ask for names?” asks Rehnquist. He can ask, but there is no obligation to respond. “How can the police ever solve a murder case?” he asks. Scalia again raises the Fifth Amendment. “Only guilty people have the right not to answer,” he says. “Is it only the person beating the woman in the truck who has a right not to give his name?” he asks. And Justice David Souter jumps in: “If I was walking down the street and a cop turned and said ‘Who are you?’would I have a Fifth Amendment right to refuse?” Dolan says he could refuse if there is a criminal punishment attached to the refusal.
Kennedy points out that this logic is “just circular.” Then he asks whether people have some privacy interest in their name alone. Dolan says yes. “But your privacy is diminished if you are a witness to a crime,” says Kennedy. “This is not the same as state demanding names from everyone.” Again reinforcing today’s theme: Suspicious people (including those who hang out near corpses) have fewer rights, just because they are so darned suspicious.
Conrad Hafen is the senior deputy attorney general from Nevada, and he has 20 minutes to defend the statute. He argues that providing one’s name is a neutral, non-incriminating act. He and Justice Kennedy try to sort out the precedential value of California v. Byers, a 1971 case finding it constitutionally permissible to make drivers involved in accidents give up their names and addresses. Byers had no clear majority opinion on this issue, so it’s not clear how much weight the court should accord it.
Ginsburg wants Hafen to explain what other facts about oneself are so “neutral” that the state might also demand them. Telephone numbers? E-mail addresses? She adds that it’s not clear to her how being given the suspect’s name (and taking the time to enter it into a computer and wait around for an answer) protects the safety of a police officer.
Stevens again worries whether doing that computer search and turning up the information that your suspect is a “bad guy” is enough to convert “reasonable suspicion” for a Terry stop into probable cause for an arrest. Hafen says not in and of itself. But Stevens is unpersuaded, so Scalia offers a scenario under which one’s name might be sufficient to lead to his arrest: if the officer learns that “he’s robbed the same jewelry store [that he is now casing] 10 previous times. That would elevate it to probable cause,” he chortles.
Justice Stephen Breyer views the clutch of Supreme Court dicta (non-binding commentary) saying that you can’t demand someone answer questions during a Terry stop as fairly weighty. He prefers this simple rule: “You can ask, and he can say no.” He concedes that a name alone doesn’t normally incriminate a person, “unless his name is Killer McGee.”
Again, the justices try to sort out whether they should decide this on Fourth Amendment grounds or Fifth Amendment grounds. They seem to agree that the latter is the tougher one.
Finally, Sri Srinivasan has 10 minutes to defend the Nevada law on behalf of the United States government. He and Stevens do a little waltz over whether cops should ask for your name before or after patting you down. See, it really is just like a constitutional one-night-stand. And in a brief rebuttal, Dolan does some eleventh-hour privacy-nut stuff: warning about how giving up your name is “the key to unlock data that is endless, given modern technology.” He adds that privacy will become some nice historical principle but no longer the right of every citizen. This is the kind of talk that gets them wailing over at the ACLU. But the court is mainly unmoved. “If you have reasonable suspicion that someone is committing a crime,” says O’Connor, “why not let them check their computer records?”
We all seem to want to live in the world inhabited by most of the justices: where our names are private, and no one needs to incriminate themselves—unless some policeman decides they are suspicious. Then, there is a duty, a responsibility, a constitution-negating requirement that you come forward—to use Scalia’s formulation—and cooperate. This idea that the “suspicious people” (read: dark-skinned, poor, urban etc.) have some heightened duty to cooperate with the police is utterly backward, in light of the police’s historical treatment of them. It’s a shame Justice Clarence Thomas doesn’t speak today. One can imagine that he has at least some idea of what it means to hold “suspicious” people to a different constitutional standard.