TREACY MACRO
4/12/2006 9:51 PM
HIIBEL V. SIXTH JUDICIAL
DISTRICT COURT OF NEVADA:
IS A SUSPECT’S REFUSAL TO IDENTIFY
HIMSELF PROTECTED BY THE
FIFTH AMENDMENT?
INTRODUCTION
The Fifth Amendment grants the citizens of the United States, among
other privileges and protections, the right to be free from compelled selfincrimination.1 Quite simply, a person’s testimony cannot be used against
him or her in a court of law. This seems to be a basic enough premise that
would not require further clarification. However, there are certain instances
where a person’s words may seem innocent in one context and completely
self-incriminating in another. For example, it seems highly unlikely that the
act of introducing oneself to a stranger at a cocktail party or a work
function would be considered testimonial or self-incriminating. People do
this freely and without a second thought every day. What if the stranger
were a police officer, however, and the person knew that when his or her
name was run through the police computer it would alert the officer to
unpaid parking tickets, an outstanding warrant, or could be used to create
some other evidentiary link to another crime? Wouldn’t compelling this
person to identify him- or herself create the environment where the answer,
testimonial in nature, could be considered nothing short of selfincriminating and thus a violation of the protections granted by the Fifth
Amendment? What if the person’s refusal to identify him- or herself
resulted in a civil penalty or arrest?
The state of Nevada is one of twenty-one states that has enacted a
version of a “stop-and-identify” statute.2 This statute allows police to detain
1.
2.
U.S. CONST. amend. V.
Hiibel v. Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177, 182 (2004). The other states with
similar statutes are Alabama, Arkansas, Colorado, Delaware, Florida, Georgia,
Illinois, Kansas, Louisiana, Missouri, Montana, Nebraska, New Hampshire, New
897
TREACY MACRO
898
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
persons suspected of criminal behavior and requires the detained person to
identify him- or herself.3 The detainee may not be compelled to answer any
other inquiry, but failure to give his or her name will result in arrest.4 The
question presented is whether compelling a suspect to identify him- or
herself violates the protection against self-incrimination granted by the
Fifth Amendment. The United States Supreme Court narrowly decided in
Hiibel v. Sixth Judicial District Court of Nevada that it does not,5 affirming
the State of Nevada’s earlier decision.6 This Comment will analyze the
Supreme Court’s decision, demonstrate why the views presented in the
dissenting opinions create better public policy, and show how lower courts
have purposefully distinguished the cases before them from Hiibel so they
would not be bound to follow its precedent.
Part I of this Comment provides background information concerning
stop-and-identify statutes and their legislative evolution, as well as the
supporting evolution of police powers (and/or reduction of every citizen’s
constitutionally protected freedoms) granted by the courts through case
law. In Part II, this Comment analyzes the Fifth Amendment and its
protections through a historical perspective and examines case law to
support these protections. Part III reviews the facts, judicial history,
reasoning, holding, and dissents of Hiibel. Part IV analyzes the recent
decisions of various jurisdictions decided after Hiibel and also analyzes
how courts have distinguished those cases. Part V contains a legal analysis
of Hiibel and how it was decided, noting what legal analysis the Court
used, and what it should have done differently to reach a constitutionally
sound decision.
I. BACKGROUND
A. Vagrancy Laws
Twenty-one states currently enforce some version of a stop-andidentify statute7 and, although there are some variances from state to state,
3.
4.
5.
6.
7.
Mexico, New York, North Dakota, Rhode Island, Utah, Vermont, and Wisconsin. Id.
NEV. REV. STAT. § 171.123 (2001).
Failure to identify oneself constitutes resisting a police officer and is punishable by
arrest per NEV. REV. STAT. § 199.280.
Hiibel, 542 U.S. at 191.
See Hiibel v. Sixth Jud. Dist. Ct. of Nev., 59 P.3d 1201, 1207 (Nev. 2002).
Hiibel, 542 U.S. at 182; see also ALA. CODE § 15-5-30 (1995); ARK. CODE ANN. § 571-213(a)(1) (1997); COLO. REV. STAT. § 16-3-103(1) (2004); DEL. CODE ANN. tit. 11,
§§ 1902(a), 1321(6) (2001); FLA. STAT. ANN. § 856.021(2) (West 2000); GA. CODE
ANN. § 16-11-36(b) (2003); 725 ILL. COMP. STAT. ANN. § 5/107-14 (West 1992);
KAN. STAT. ANN. § 22-2402(1) (1995); LA. CODE CRIM. PROC. ANN. art. 215.1(A)
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 899
all permit an officer to ask or require a suspect to identify him- or herself.8
These statutes often “combine elements of traditional vagrancy laws with
provisions intended to regulate police behavior in the course of
investigatory stops.”9 Stop-and-identify statutes evolved from early English
vagrancy laws that required vagrants to account for themselves or face
arrest.10 Some states base their statute on the Uniform Arrest Act,11 while
others base it on the American Law Institute’s Model Penal Code.12 “In
some States, a suspect’s refusal to identify himself is a misdemeanor
offense or civil violation; in others, it is a factor to be considered in
whether the suspect has violated loitering laws. In other States, a suspect
may decline to identify himself without penalty.”13
Vagrancy laws in the United States were derived from early English
8.
9.
10.
11.
12.
(2003); MO. ANN. STAT. § 84.710(2) (West 1998); MONT. CODE ANN. § 46-5401(2)(a) (2005); NEB. REV. STAT. § 29-829 (1995); N.H. REV. STAT. ANN. §§ 594:2,
644:6(II) (LexisNexis 2003); N.M. STAT. § 30-22-3 (1994); N.Y. CRIM. PROC. LAW §
140.50(1) (McKinney 2004); N.D. CENT. CODE § 29-29-21 (1991); R.I. GEN. LAWS §
12-7-1 (2002); UTAH CODE ANN. § 77-7-15 (2003); VT. STAT. ANN. tit. 24, § 1983
(1992 & Supp. 2004); WIS. STAT. ANN. § 968.24 (West 1998).
Hiibel, 542 U.S. at 183.
Id.
Id.
In 1939, the Interstate Commission on Crime drafted the Uniform Arrest Act after
studying the “law of arrest” in an attempt to “reconcile the law as written with the law
in action.” Sam B. Warner, The Uniform Arrest Act, 28 VA. L. REV. 315, 316 (1942).
With respect to questioning and detaining suspects, officers had “the right to arrest
without a warrant any person whom they reasonably believe is committing or has
committed a felony or a misdemeanor” based on common law or statute. Id. at 317.
At least one scholar has contended that the ability of the police to question suspects
without arrest is necessary to perform proper police work and is not typically an
unreasonably lengthy detention: “When an officer stops and questions a suspect, he is
usually able to decide at once whether to let him go or to arrest and charge him with a
crime. Occasionally, however, further verification is necessary.” Id. at 321. The
Uniform Arrest Act provided that “[a]ny person so questioned who fails to identify
himself or explain his actions to the satisfaction of the officer may be detained and
further questioned and investigated.” Id.
MODEL PENAL CODE § 250.12 (Tentative Draft No. 13 1961). That section of the
tentative draft defines “suspicious loitering” as:
A person who loiters or wanders without apparent reason or business in
a place or manner not usual for law-abiding individuals and under
circumstances which justify suspicion that he may be engaged or about
to engage in crime commits a violation if he refuses the request of a
peace officer that he identify himself and give a reasonably credible
account of the lawfulness of his conduct and purposes.
13.
Id.
Hiibel, 542 U.S. at 183.
TREACY MACRO
900
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
law and use archaic language when defining “vagrants.”14 A brief summary
of England’s vagrancy laws is found in Papachristou v. City of
Jacksonville:
The break-up of feudal estates in England led to labor shortages
which in turn resulted in the Statutes of Laborers, designed to
stabilize the labor force by prohibiting increases in wages and
prohibiting the movement of workers from their home areas in
search of improved conditions. Later vagrancy laws became
criminal aspects of the poor laws. The series of laws passed in
England on the subject became increasingly severe . . . . The
conditions which spawned these laws may be gone, but the
archaic classifications remain.15
Through the years, several courts have addressed concerns about
vagrancy laws and recognized similar limitations in some early stop-andidentify statutes.16 In Papachristou, the Court held that Florida’s vagrancy
law was void for vagueness because it failed “to give a person of ordinary
intelligence fair notice that his contemplated conduct is forbidden by the
statute . . . .”17 Furthermore, it encouraged “arbitrary and erratic arrests and
convictions.”18 The Court acknowledged that walkers, wanderers, or
strollers “may be going to or coming from a burglary,” but they may just be
14.
15.
16.
17.
18.
Papachristou v. City of Jacksonville, 405 U.S. 156, 161 (1972).
Id. at 161-62 (holding that two men seemingly wandering a neighborhood possibly in
search of a friend cannot be arrested under a vague vagrancy ordinance because the
ordinance encouraged arbitrary and erratic arrests); see also MODEL PENAL CODE §
250.12 cmt. 1 (Tentative Draft No. 13 1961). The American Law Institute further
explained loitering statutes: “Loitering statutes, whether or not they include
provisions for police interrogation and compulsion on the loiterer to explain his
presence, appear to be designed to enable the police to arrest persons suspected of
having committed or being about to commit offenses.” Id. cmt. 2.
See generally Kolender v. Lawson, 461 U.S. 352 (1983); Brown v. Texas, 443 U.S.
47 (1979); Papachristou, 405 U.S. 156; State v. White, 640 P.2d 1061 (Wash. 1982).
Papachristou, 405 U.S. at 162 (quoting United States v. Harriss, 347 U.S. 612, 617
(1954)).
Id. (citing Thornhill v. Alabama, 310 U.S. 88 (1940); Herndon v. Lowry, 301 U.S.
242 (1937)). The Papachristou Court further explained the constitutional infirmity of
the invalidated statute:
Another aspect of the ordinance’s vagueness appears when we focus . . .
on the effect of the unfettered discretion it places in the hands of the
Jacksonville police . . . . Such crimes . . . are not compatible with our
constitutional system. We allow our police to make arrests only on
“probable cause” . . . . Arresting a person on suspicion, like arresting a
person for investigation, is foreign to our system . . . .
Id. at 168-69.
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 901
people enjoying their independence and free spirit; it is not up to the police
to arbitrarily stop them to find out.19
Vagrancy laws gradually evolved into stop-and-identify statutes, and
in Brown v. Texas, the Supreme Court invalidated a conviction in violation
of Texas’s stop-and-identify statute for similar grounds, ruling that the
initial stop was not based on a “reasonable, articulable suspicion that a
crime had just been, was being, or was about to be committed.”20 The Court
held that “[w]hen such a stop is not based on objective criteria, the risk of
arbitrary and abusive police practices exceeds tolerable limits.”21 In
assessing the reasonableness of the personal intrusion allowed by the
statute, the Brown Court considered “‘a balance between the public interest
and the individual’s right to personal security free from arbitrary
interference by law officers.’”22 A central concern for the Court, and a
reason for invalidating the statute, was assuring that an individual’s
“reasonable expectation of privacy is not subject to arbitrary invasions
solely at the unfettered discretion of officers in the field.”23
The Supreme Court later invalidated a modified stop-and-identify
statute on vagueness grounds in Kolender v. Lawson.24 That California
statute made it a misdemeanor for anyone “‘[w]ho loiters or wanders upon
the streets or from place to place without apparent reason or business and
who refuses to identify himself or herself and to account for his or her
presence when requested by any peace officer so to do’” when the
surrounding circumstances would indicate to a reasonable person that
“‘public safety demands this identification.’”25 The Ninth Circuit held that
this statute was identical to the one it invalidated in Powell v. Stone.26 Both
19.
20.
21.
22.
23.
24.
25.
26.
Id. at 164. “Luis Munoz-Marin, former Governor of Puerto Rico, commented once
that ‘loafing’ was a national virtue in his Commonwealth and that it should be
encouraged. It is, however, a crime in Jacksonville.” Id. at 163.
443 U.S. 47, 51 (1979) (internal quotations omitted).
Id. at 52 (citing Delaware v. Prouse, 440 U.S. 648, 661 (1979)); see also
Papachristou, 405 U.S. at 165 (“‘It would certainly be dangerous if the legislature
could set a net large enough to catch all possible offenders, and leave it to the courts
to step inside and say who could be rightfully detained, and who should be set at
large.’” (quoting United States v. Reese, 92 U.S. 214, 221 (1875)).
Brown, 443 U.S. at 50 (quoting Pennsylvania v. Mimms, 434 U.S. 106 (1977); United
States v. Brignoni-Ponce, 422 U.S. 873 (1975)).
Id. at 51 (citing Delaware v. Prouse, 440 U.S. 648 (1979)).
461 U.S. 352, 353-54 (1983).
Id. (quoting CAL. PENAL CODE § 647(e) (1970).
Lawson v. Kolender, 658 F.2d 1362, 1364 (9th Cir. 1981); see also Powell v. Stone,
507 F.2d 93, 96 (9th Cir. 1974) (holding that excluding evidence obtained from an
illegal search as a result of police enforcing an unconstitutionally vague vagrancy
statute in good faith will deter legislatures from creating vague statutes).
TREACY MACRO
902
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
vagrancy statutes were void for vagueness because they failed to give fair
notice of what conduct was forbidden and because they “encouraged
arbitrary and erratic arrests and convictions.”27 The Supreme Court
affirmed the decision, adding that the statute, “as presently drafted and
construed by the state courts, contains no standard for determining what a
suspect has to do in order to satisfy the requirement to provide a ‘credible
and reliable’ identification. As such, the statute vests virtually complete
discretion in the hands of the police.”28
In State v. White, the Supreme Court of Washington struck down a
stop-and-identify statute for vagueness,29 and noted that constitutional
challenges to the identification requirement under the First, Fourth, and
Fifth Amendments are also possible.30 The statute at issue made it illegal
for anyone “without lawful excuse [to] refuse or knowingly fail to make or
furnish any statement, report, or information lawfully required of him by a
public servant . . . .”31 In White, other than violation of the stop-andidentify statute, no grounds existed to justify an arrest.32 The court analyzed
the pros and cons of such statutes:
Stop-and-identify statutes are recognized by some commentators
as valuable tools to police in preventing and detecting crime and
in giving additional authority to officers in sometimes dangerous
street encounters. However, useful as they may be, statutes of
this type can result in disturbing intrusions into an individual’s
right to privacy and can implicate other rights specifically
enumerated in the Bill of Rights.33
The White court, therefore, required that stop-and-identify statutes be
carefully and restrictively drawn.34 This statute failed that requirement due
to its subjective language.35 “Legislation which purports to define illegality
by resort to such inherently subjective terms as ‘unlawful purpose’ . . .
permits, indeed requires, an ad hoc police determination of criminality . . . .
The potential for arbitrary and discriminatory law enforcement under such
27.
28.
29.
30.
31.
32.
33.
34.
35.
Lawson, 658 F.2d at 1364 (holding that a statute requiring suspicious individuals to
provide reliable identification to police officers was unconstitutional because it
subverted the probable cause requirement for arrest).
Kolender, 461 U.S. at 358.
640 P.2d 1061, 1066 (Wash. 1982).
See id. at 1064 n.1.
Id. at 1063 (quoting WASH. REV. CODE § 9A.76.020 (2000)).
Id. (“There was no probable cause to believe respondent had committed a burglary or
any crime other than that defined by the statute in question.”).
Id. at 1064 (internal citation and footnote omitted).
Id.
White, 640 P.2d at 1064.
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 903
legislation cannot constitutionally be tolerated.”36 The court turned to other
jurisdictions for guidance and found that a more restrictively written statute
(requiring reasonable cause37) in Michigan was declared unconstitutional.38
In reference to stop-and-identify statutes, the court held that “stops under
such statutes must be based on specific, objective facts indicating that
society’s legitimate interests require the seizure of the particular individual,
or that the seizure must be carried out pursuant to a plan embodying
explicit, neutral limitations on the conduct of individual officers.”39 The
Supreme Court of Washington, therefore, affirmed the trial court’s
invalidation of the stop-and-identify statute.40
Although the courts were seemingly reducing the powers granted to
the police, that premise is not entirely accurate. In fact, when the Supreme
Court heard Terry v. Ohio, it granted powers once unimaginable within the
context of the Fourth Amendment—the right to “frisk” a suspect without a
warrant and without probable cause.41 This dramatic increase of courtgranted power to the police and apparent erosion of a Fourth Amendment
protection was merely foreshadowing what the Rehnquist Court would do
to the Fifth Amendment when it decided Hiibel.42
B. Terry v. Ohio
On June 10, 1968, the Supreme Court granted new and significant
powers to the police when it decided Terry v. Ohio.43 The Court held that
where a police officer observed unusual conduct which led him or her to
reasonably conclude that criminal activity was taking place, had just taken
place, or was about to take place and that the suspect may be armed and
presently dangerous, the police officer may conduct a limited search (or
“pat down”) of the outer clothing of the person in an attempt to discover
weapons, which may be used to assault the officer.44 “The sole justification
36.
37.
38.
39.
40.
41.
42.
43.
44.
Id. (omissions in original) (quoting City of Bellevue v. Miller, 536 P.2d 603, 607
(1975)).
“Reasonable cause” is defined as “more than a bare suspicion but less than evidence
that would justify a conviction.” BLACK’S LAW DICTIONARY 1239, 1293 (8th ed.
2004) (defining “probable cause,” also termed “reasonable cause”).
White, 640 P.2d at 1066 (citing Michigan v. DeFillippo, 443 U.S. 31 (1979)).
Id. (citing Brown v. Texas, 443 U.S. 47, 51 (1979)).
Id. at 1072.
See 392 U.S. 1, 30 (1968).
See Hiibel v. Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177 (2004).
392 U.S. 1.
See id. at 30; see also DAN S. MURRELL, J.D., LL.M. & WILLIAM O. DWYER, PH.D.,
CONSTITUTIONAL LAW AND LIABILITY FOR AGENTS, DEPUTIES, AND POLICE OFFICERS
24-27 (1992) (describing the rules for frisking a suspect).
TREACY MACRO
904
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
of the search in the present situation is the protection of the police officer
and others nearby, and it must therefore be confined in scope to an
intrusion reasonably designed to discover guns, knives, clubs, or other
hidden instruments for the assault of the police officer.”45
Terry involved a police officer who witnessed two men suspiciously
loitering around the outside of a store, apparently “casing” it for a
robbery.46 After additional observation of the same behavior and the
appearance of a third man, the officer “approached the three men, identified
himself as a police officer and asked for their names.”47 When one of the
men only mumbled, the officer grabbed Terry, spun him around, patted him
down and found a pistol concealed in his pocket.48 After moving the men
into the store and taking off Terry’s coat so he could get the revolver, the
officer proceeded to pat down the other men.49 These additional pat downs
allowed the officer to find another revolver.50
The Supreme Court held that the officer had seized and searched the
men as those terms are defined in the Fourth Amendment, thus rejecting the
notion that the Fourth Amendment did not apply to police conduct until the
officers had conducted a “technical arrest” or a “full-blown search.”51 The
Court then needed to determine whether that interference with personal
security and freedom was reasonable.52 The Court explained, “in
determining whether the seizure and search were ‘unreasonable’ our
inquiry is a dual one—whether the officer’s action was justified at its
inception, and whether it was reasonably related in scope to the
circumstances which justified the interference in the first place.”53
In balancing the justification for giving officers the “power to take
necessary measures to determine whether the person is in fact carrying a
weapon and to neutralize the threat of physical harm”54 against the “severe,
though brief, intrusion upon cherished personal security,”55 the Court
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
Terry, 392 U.S. at 29.
Id. at 6.
Id. at 6-7.
Id. at 7.
Id.
Id.
Terry, 392 U.S. at 19. “In this case there can be no question, then, that Officer
McFadden ‘seized’ petitioner and subjected him to a ‘search’ when he took hold of
him and patted down the outer surfaces of his clothing.” Id.
Id.
Id. at 19-20.
Id. at 24.
Id. at 24-25.
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 905
turned to its earlier decisions for precedent.56 It acknowledged a “necessity
to protect the arresting officer from assault with a concealed weapon”57 but,
if without probable cause to arrest, the search must “be strictly
circumscribed by the exigencies which justify its initiation.”58 The Court
held that the proper balance was present in this case, justifying the officer’s
search and seizure of Terry.59 Thus, a new power to search and seize
without probable cause was created.60
It is important to note, however, that these powers extend only to
officers who reasonably feel the suspect is armed.61 The officer is permitted
“to conduct a carefully limited search,” which must be confined to the outer
clothing of the suspect and is limited to “an attempt to discover weapons
which might be used to assault [the officer].”62 The search can occur only
after the police officer has identified him- or herself, made reasonable
inquiries, and when “nothing in the initial stages of the encounter serves to
dispel his reasonable fear for his own or others’ safety . . . .”63 Furthermore,
an individual detained under Terry is not obliged to respond to an officer’s
questions.64 A person approached by an officer pursuant to Terry “need not
answer any question put to him . . . [and] may decline to listen to the
questions at all and may go on his way.”65 This police power extends only
to a limited weapons search and no further.66
56.
57.
58.
59.
60.
See id. at 25-26.
Terry, 392 U.S. at 25 (citing Preston v. United States, 376 U.S. 364, 367 (1964)).
Id. at 26 (citing Warden v. Hayden, 387 U.S. 294, 310 (1967)).
Id. at 27-28.
Id. at 27. The court stated,
[o]ur evaluation of the proper balance that has to be struck in this type
of case leads us to conclude that there must be a narrowly drawn
authority to permit a reasonable search for weapons for the protection of
the police officer, where he has reason to believe that he is dealing with
an armed and dangerous individual, regardless of whether he has
probable cause to arrest the individual for a crime. The officer need not
be absolutely certain that the individual is armed; the issue is whether a
reasonably prudent man in the circumstances would be warranted in the
belief that his safety or that of others was in danger.
61.
62.
63.
64.
65.
66.
Id.
Id.; see also MURRELL & DWYER, supra note 44, at 24-27.
Terry, 392 U.S. at 30.
Id.
Berkemer v. McCarty, 468 U.S. 420, 439 (1984). It has also been considered a
“settled principle” that police officers investigating crimes had no right to compel
citizens to answer questions. Davis v. Mississippi, 394 U.S. 721, 727 n.6 (1969).
Florida v. Royer, 460 U.S. 491, 497-98 (1983).
Terry, 392 U.S. at 29.
TREACY MACRO
4/12/2006 9:51 PM
906
NEW ENGLAND LAW REVIEW
[Vol. 40:897
These Terry stops are now considered commonplace in the United
States.67 This personal intrusion, once unthinkable, is no longer considered
an invasive procedure; as that line has shifted, courts have granted the
police increased power to stop and interrogate suspects, leading up to
Hiibel v. Sixth Judicial District Court of Nevada.68 As will be discussed in
Part V, Hiibel erodes the protections granted in the Fifth Amendment to the
Constitution.
II. THE FIFTH AMENDMENT AND ITS PROTECTIONS
A. History
The Fifth Amendment states that no person “shall be compelled in
any criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law . . . .”69 The right against
self-incrimination dates back to common law, and in 1776 several states
elevated it to a constitutional right.70 “Virginia blazed the trail with her
celebrated Declaration of Rights as a preface to her constitution.”71 George
Mason, the author of the clause for Virginia, gets “the credit for initiating
the constitutionalization of the old rule of evidence that a man cannot ‘be
compelled to give evidence against himself.’”72 Furthermore, Mason is said
to have “enshrined the rule in the fundamental law . . . .”73
As far back as the eighteenth century, witnesses have not been
required to reply to questions that lead to self-incrimination:
The right applied to all stages of all equity and common-law
proceedings and to all witnesses as well as to the parties. It could
be invoked by a criminal suspect at his preliminary examination
67.
68.
69.
70.
71.
72.
73.
MURRELL & DWYER, supra note 44, at 24-27.
542 U.S. 177, 183-85 (2004).
U.S. CONST. amend. V. “A review of that period reveals substantial support for the
view that the term ‘witness’ meant a person who gives or furnishes evidence, a
broader meaning than that which our case law currently ascribes to the term.” United
States v. Hubbell, 530 U.S. 27, 50 (2000) (Thomas, J., concurring).
LEONARD W. LEVY, ORIGINS OF THE FIFTH AMENDMENT: THE RIGHT AGAINST SELFINCRIMINATION 405 (1968); see also Hubbell, 530 U.S. at 52 (Thomas, J., concurring)
(“Following Virginia’s lead, seven of the other original States included specific
provisions in their Constitutions granting a right against compulsion ‘to give
evidence’ or ‘to furnish evidence.’”).
LEVY, supra note 70, at 405.
Id.
Id.; see also Hubbell, 530 U.S. at 52 (Thomas, J., concurring) (“[T]he privilege
against self-incrimination was enshrined in the Virginia Declaration of Rights in
1776.”).
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 907
before a justice of the peace; by a person testifying at a grand
jury investigation into crime; by anyone giving evidence in a suit
between private parties; and, above all perhaps, by the subject of
an inquisitorial proceeding before any governmental or
nonjudicial tribunal, such as a legislative committee or the
governor and council, seeking to discover criminal culpability. If
one’s disclosures could make him vulnerable to legal peril, he
could invoke his right to silence. He might even do so if his
answers revealed infamy or disgrace yet could not be used
against him in a subsequent prosecution.74
It was this right, first granted in Virginia, that “became a model for other
states and the United States Bill of Rights.”75 James Madison proposed the
inclusion of this self-incrimination phrase into the Bill of Rights on June 8,
1789.76 The language of his proposal “revealed an intent to incorporate into
the Constitution the whole scope of the common-law right.”77 Madison’s
proposal applied to civil proceedings and criminal proceedings;78
furthermore, and possibly more importantly, it applied “in principal to any
stage of a legal inquiry, from the moment of arrest in a criminal case, to the
swearing of a deposition in a civil one. And not being restricted to judicial
proceedings, it extended to any other kind of governmental inquiry such as
a legislative investigation.”79 Although the final language of the Fifth
Amendment was altered to deny only the compelling of self-incrimination
in any criminal case,80 the protections have a far greater reach.81
74.
75.
76.
77.
78.
79.
LEVY, supra note 70, at 406.
Id. at 409; see also CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE: REGULATION OF
POLICE INVESTIGATION 357 (3d ed. 2002) (“By the time the U.S. Constitution was
drafted, at least six of the colonies had constitutions which contained language similar
to Virginia’s . . . .”).
LEVY, supra note 70, at 422.
Id. at 423.
Id.
Id.; see also SLOBOGIN, supra note 75, at 357.
[W]hereas the privilege described in the Virginian text and most other
colonial texts was included in the same provision that established postaccusation procedural rights like the right to counsel and the right to
confront witnesses, the federal privilege is separate from the sixth
amendment’s guarantee of post-accusation rights. Professor Levy has
argued that inclusion of the privilege in the fifth amendment instead of
the sixth amendment meant that it was intended to apply to all
proceedings before and after the ‘criminal prosecution’ mentioned in the
latter amendment.
80.
Id.
LEVY, supra note 70, at 425.
TREACY MACRO
908
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
Our courts have affirmed the fact that the protections of the Fifth
Amendment do have a far greater reach than the final language of the
amendment itself.82 The courts have continued to extend the privilege to
apply in multiple contexts and to varying subjects.83 The privilege against
self-incrimination has evolved through the years, becoming broader and
applying in new and different situations and fact patterns.84 This trend
reversed itself, however, when Larry Dudley Hiibel’s case reached the
Supreme Court.85
B. Case Law Prior to Hiibel
Case law verifies that the privilege against self-incrimination granted
in the Fifth Amendment extends beyond the narrow scope of the language
itself.86 The phrase “in any criminal case” has been extended beyond the
compelled testimony actually used against the defendant during the trial
itself.87 The United States v. Hubbell Court declared that it has “long been
settled that [the Fifth Amendment’s] protection encompasses compelled
statements that lead to the discovery of incriminating evidence even though
the statements themselves are not incriminating and are not introduced into
evidence.”88 Therefore, compelled testimony that is not itself inculpatory
81.
Id. at 427.
The ‘right against self-incrimination’ is a short-hand gloss of modern
origin that implies a restriction not in the constitutional clause. The right
not to be a witness against oneself imports a principle of wider reach,
applicable, at least in criminal cases, to the self-production of any
adverse evidence, including evidence that made one the herald of his
own infamy, thereby publicly disgracing him. The clause extended, in
other words, to all the injurious as well as incriminating consequences
of disclosure by witness or party.
82.
83.
84.
85.
86.
87.
88.
Id.
See discussion infra Part II.B.
See discussion infra Part II.B.
See discussion infra Part II.B.
See Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 179 (2004); see also
infra Part II.B.
Miranda v. Arizona, 384 U.S. 436, 443-44 (1966) (citing Hoffman v. United States,
341 U.S. 479, 486 (1951) (“This provision of the Amendment must be accorded
liberal construction in favor of the right it was intended to secure.”); Weems v. United
States, 217 U.S. 349, 373 (1910) (“The meaning and vitality of the Constitution have
developed against narrow and restrictive construction.”)).
United States v. Hubbell, 530 U.S. 27, 37 (2000).
Id.; see also United States v. Castro, 129 F.3d 226, 229 (1st Cir. 1997) (“If a reply to
a seemingly innocuous question reasonably will tend to sculpt a rung in the ladder of
evidence leading to prosecution, the privilege appropriately may be invoked.”).
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 909
but that may lead to other incriminating evidence is still privileged.89 “The
privilege afforded not only extends to answers that would in themselves
support a conviction under a federal criminal statute but likewise embraces
those which would furnish a link in the chain of evidence needed to
prosecute the claimant for a federal crime.”90
In Kastigar v. United States, the Court held that the Fifth Amendment
privilege also applied to disclosures that the witness reasonably believed
could be used in a criminal prosecution or lead to other evidence that could
be used in the same manner.91 That Court found that the privilege against
self-incrimination “reflects a complex of our fundamental values and
aspirations, and marks an important advance in the development of our
liberty.”92
This right to remain silent is also available outside of court
proceedings and “serves to protect persons in all settings in which their
freedom of action is curtailed in any significant way from being compelled
to incriminate themselves.”93 The police may question citizens, but the
citizens cannot be compelled to answer.94 The Fifth Amendment
protections against self-incrimination are offered to those who refuse to
testify,95 as well as those unindicted targets of grand jury subpoenas.96 An
arrested suspect is given this protection during custodial interrogation.97
Furthermore, “[t]o sustain the privilege, it need only be evident from the
implications of the question, in the setting in which it is asked, that a
responsive answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could result.”98
The privilege assures that citizens are not compelled, through their own
testimony, to incriminate themselves.99 It allows citizens to remain silent
when asked a question that may lead to an incriminating answer.100
The privilege does have some limits, however, as it applies only to
“the relevant category of compelled incriminating communications . . . that
89.
90.
91.
92.
Hubbell, 530 U.S. at 37.
Hoffman, 341 U.S. at 486.
406 U.S. 441, 444-45 (1972).
Id. at 444 (citing Murphy v. Waterfront Comm’n, 378 U.S. 52, 55 (1964); Ullmann v.
United States, 350 U.S. 422, 426 (1956)).
93. Miranda v. Arizona, 384 U.S. 436, 467 (1966).
94. Davis v. Mississippi, 394 U.S. 721, 727 n.6 (1969).
95. See Carter v. Kentucky, 450 U.S. 288, 299-300 (1981).
96. See Chavez v. Martinez, 538 U.S. 760, 767-68 (2003).
97. Miranda, 384 U.S. at 467-68.
98. Hoffman v. United States, 341 U.S. 479, 486-87 (1951).
99. Kastigar v. United States, 406 U.S. 441, 461 (1972).
100. Id.
TREACY MACRO
910
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
are ‘testimonial’ in character.”101 Compelling a criminal suspect to engage
in certain incriminating actions can be constitutionally valid:102 he or she
may be compelled to put on a shirt;103 he or she may be compelled to
provide a blood sample;104 and he or she may be compelled to provide a
handwriting exemplar105 or to make a recording of his or her voice.106 The
Hubbell Court explained that “[t]he act of exhibiting such physical
characteristics is not the same as a sworn communication by a witness that
relates either express or implied assertions of fact or belief.”107 “Similarly,
the fact that incriminating evidence may be the byproduct of obedience to a
regulatory requirement” does not indicate a violation of the Fifth
Amendment.108 For example, filing a tax return and maintaining required
records are not protected acts.109 Furthermore, reporting an accident is not
considered self-incriminating.110 “The Court has on several occasions
recognized that the Fifth Amendment privilege may not be invoked to resist
compliance with a regulatory regime constructed to effect the State’s public
purposes unrelated to the enforcement of its criminal laws.”111 Therefore,
the Court has established and enforced some limits to the protections
granted by the Fifth Amendment.
A case that furthered the reach of the Fifth Amendment’s protection
against self-incrimination, however, was Miranda v. Arizona.112 The
Supreme Court granted certiorari “in order further to explore some facets of
the problems . . . of applying the privilege against self-incrimination to incustody interrogation, and to give concrete constitutional guidelines for law
enforcement agencies and courts to follow.”113 The Court addressed
101. United States v. Hubbell, 530 U.S. 27, 34 (2000) (citing Andresen v. Maryland, 427
102.
103.
104.
105.
106.
107.
108.
109.
110.
111.
112.
113.
U.S. 463, 470-71 (1976)); see also 1 MICHELE G. HERMANN, CRIMINAL PROCEDURE
CHECKLISTS: FIFTH AMENDMENT 21-25 (2002).
Hubbell, 530 U.S. at 34-35.
See Holt v. United States, 218 U.S. 245, 252-53 (1910).
Schmerber v. California, 384 U.S. 757, 765 (1966).
Gilbert v. California, 388 U.S. 263, 267 (1967).
United States v. Wade, 388 U.S. 218, 222 (1967).
Hubbell, 530 U.S. at 35 (citing Pennsylvania v. Muniz, 496 U.S. 582, 594-98 (1990)).
Id.
Shapiro v. United States, 335 U.S. 1, 23-24 (1948); United States v. Sullivan, 274
U.S. 259, 263-64 (1927).
California v. Byers, 402 U.S. 424 (1971).
Baltimore City Dept. of Soc. Servs. v. Bouknight, 493 U.S. 549, 556 (1990).
384 U.S. 436 (1966).
Id. at 441-42. “The Supreme Court began its effort to regulate police interrogation
practices in 1936, when it considered for the first time whether the admission of a
confession in a state criminal case was so contrary to fundamental fairness that it
violated the defendant’s right to due process.” WELSH S. WHITE, MIRANDA’S WANING
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 911
common police interrogation practices to illustrate the manipulation of
suspects and the subsequent self-incrimination violations.114 “It is obvious
that such an interrogation environment is created for no purpose other than
to subjugate the individual to the will of his examiner.”115 The Court found
these interrogation practices violative of the Fifth Amendment, as they
compel self-incrimination.116 “Unless adequate protective devices are
employed to dispel the compulsion inherent in custodial surroundings, no
statement obtained from the defendant can truly be the product of his free
choice.”117
The Miranda Court held that the privilege is “fulfilled only when the
person is guaranteed the right ‘to remain silent unless he chooses to speak
in the unfettered exercise of his own will.’”118 Furthermore, a suspect’s
failure to speak may not be used against him or her.119 The Court found the
privilege so fundamental that in all cases going forward it would inquire
“whether the defendant was aware of his rights without a warning being
given.”120 To clarify things further, the Court required that each warning of
the right to remain silent also be accompanied by an explanation of the
consequences for not invoking the privilege.121 “This warning is needed in
order to make him aware not only of the privilege, but also of the
consequences of forgoing it. It is only through an awareness of these
consequences that there can be any assurance of real understanding and
intelligent exercise of the privilege.”122 The Miranda Court felt it was not
extending any privilege, but merely reinforcing what was already
protected:123
114.
115.
116.
117.
118.
119.
120.
121.
122.
123.
PROTECTIONS: POLICE INTERROGATION PRACTICES AFTER DICKERSON 39 (2001).
Miranda, 384 U.S. at 448-50.
Id. at 457.
Id. at 457-58.
Id. at 458.
Id. at 460 (quoting Malloy v. Hogan, 378 U.S. 1, 8 (1964)).
Id. at 468 n.37. “In accord with our decision today, it is impermissible to penalize an
individual for exercising his Fifth Amendment privilege when he is under police
custodial interrogation. The prosecution may not, therefore, use at trial the fact that he
stood mute or claimed his privilege in the face of accusation.” Id.
Miranda, 384 U.S. at 468.
Id. at 469.
Id.
Id. at 442. “It was necessary . . . to insure that what was proclaimed in the
Constitution had not become but a ‘form of words’ in the hands of government
officials.” Id. at 444 (quoting Silverthorne Lumber Co. v. United States, 251 U.S.
385, 392 (1920)).
TREACY MACRO
912
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
[O]ur holding is not an innovation in our jurisprudence, but is an
application of principles long recognized and applied in other
settings. . . . [The holding is] but an explication of basic rights
that are enshrined in our Constitution—that “No person . . . shall
be compelled in any criminal case to be a witness against
himself” . . . .124
Therefore, after Miranda, police procedures must adhere to the
Court’s holding in order to guarantee compliance with the Fifth
Amendment’s protections. Before any questioning may take place, the
suspect must be advised of the right to remain silent and that anything said
may be used as evidence against the suspect.125 For a waiver of these rights
to be effective, it must be made “voluntarily, knowingly and
intelligently.”126 If the person is without an attorney and indicates “in any
manner” that he or she does not wish to be questioned, the police may not
commence or continue questioning.127
The Feldman v. United States Court summarized the intent of the
Fifth Amendment in stating that “the Bill of Rights was added to the
original Constitution in the conviction that too high a price may be paid
even for the unhampered enforcement of the criminal law and that, in its
attainment, other social objects of a free society should not be
sacrificed.”128 The cases heard after Feldman supported and furthered that
description of intent. Hiibel, however, was a dramatic shift in the Court’s
historical approach to the Fifth Amendment.
III. HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA129
A. Facts and Procedural History
The police department in Humboldt County, Nevada, received a
telephone call from a concerned citizen reporting an assault.130 The caller
reported seeing a man assault a woman in a truck on Grass Valley Road.131
124.
125.
126.
127.
128.
Id. at 442 (second alteration in original).
Id. at 444.
Miranda, 384 U.S. at 444.
Id. at 445.
322 U.S. 487, 489 (1944). “We are immediately concerned with the Fourth and Fifth
Amendments, intertwined as they are, and expressing as they do supplementing
phases of the same constitutional purpose—to maintain inviolate large areas of
personal privacy.” Id. at 489-90.
129. 542 U.S. 177 (2004).
130. Id. at 180.
131. Id.
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 913
When Deputy Sheriff Lee Dove arrived on the scene, he found a truck
parked on the side of Grass Valley Road with skid marks in the gravel
behind it, leading the officer to believe that the vehicle had stopped
suddenly.132 There was a man standing beside the vehicle and a woman
inside it.133 Deputy Sheriff Dove believed the man, Larry D. Hiibel, to be
intoxicated based on his “eyes, mannerisms, speech, and odor.”134 When he
asked Hiibel to identify himself, Hibbel refused.135 Hiibel told the officer
that he was willing to cooperate but would not provide identification since
he felt he did nothing wrong.136 Deputy Sheriff Dove explained the
situation to the Supreme Court of Nevada:
I felt based on me not being able to find out who he was, to
identify him, I didn’t know if he was wanted or what is [sic]
situation was, I [w]asn’t able to determine what was going on
crimewise in the vehicle, based on that I felt he was intoxicated,
and how he was becoming aggressive and moody, I went ahead
and put him in handcuffs so I could secure him for my safety,
and put him in my patrol vehicle.137
After requesting identification eleven times and being denied each time, the
officer arrested Hiibel for violation of Nevada’s stop-and-identify statute.138
Nevada’s statute states, in pertinent part, that:
1. Any 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.
....
3. The officer may detain the person pursuant to this section only
to ascertain his identity and the suspicious 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.139
132.
133.
134.
135.
136.
137.
138.
Id.
Id.
Hiibel v. Sixth Judicial Dist. Court of Nev., 59 P.3d 1201, 1203 (Nev. 2002).
Id.
Id.
Id. (alterations in original).
Id.; see also supra Part I.A (providing background information on stop-and-identify
statutes).
139. NEV. REV. STAT. ANN. § 171.123 (LexisNexis 2001).
TREACY MACRO
914
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
Hiibel was convicted before a justice of the peace.140 The decision
was affirmed by the Sixth Judicial District Court of Nevada.141 The
Supreme Court of Nevada affirmed and held that the statute did not violate
Hiibel’s constitutional rights.142 Hiibel appealed, and the U.S. Supreme
Court granted certiorari.143
B. Supreme Court of Nevada
Chief Justice Young announced the opinion of the court: the stop-andidentify statute struck the proper balance between constitutionally protected
privacy and the need to protect police officers and the public at large.144
The court, in announcing its decision, specifically referenced the privacy
protections of the Fourth Amendment, but not the Fifth Amendment
privilege against self-incrimination.145 The court, however, briefly
addressed the district court’s balancing test regarding the Fifth Amendment
right, in supporting its holding and reasoning.146 The Supreme Court of
Nevada unsuccessfully turned to the United States Supreme Court for
precedent, noting that the Court had not resolved the issue.147 The court
then turned to federal Courts of Appeals but noted the split in authority.148
Therefore, the court deemed it appropriate to perform its own independent
140.
141.
142.
143.
144.
145.
146.
Hiibel, 59 P.3d at 1203.
See id.
Id.
Hiibel v. Sixth Judicial Dist. Court of Nev., 540 U.S. 965 (2003).
Hiibel, 59 P.3d at 1202-03.
Id.
Id. at 1203-04. As the court stated:
The district court balanced the public’s interest in requiring Hiibel to
identify himself against Hiibel’s Fifth Amendment right to remain
silent. The district court determined it was crucial for the safety of an
officer and possible victims to know the identity of a person suspected
of battery, domestic violence, and driving under the influence.
Id.
147. See id. at 1203. “The United States Supreme Court has twice expressly refused to
address whether a person reasonably suspected of engaging in criminal behavior may
be required to identify himself or herself.” Id. (citing Kolender v. Lawson, 461 U.S.
352, 361-62 n.10 (1983); Brown v. Texas, 443 U.S. 47, 53 n.3 (1979)); see also
Gainor v. Rogers, 973 F.2d 1379, 1386 n.10 (8th Cir. 1992) (noting that the Supreme
Court had not resolved the issue of whether a police officer may arrest a person for
failing to identify themselves); Tom v. Voida, 963 F.2d 952, 959 n.8 (7th Cir. 1992)
(noting that the Supreme Court had not ruled on the issue of whether the police could
require individuals to answer questions during an investigative stop).
148. Hiibel, 59 P.3d at 1204.
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 915
analysis of the constitutionality of the statute.149
The court determined that public safety, and specifically the safety of
police officers, was a much greater benefit than protecting the privacy of a
suspicious individual’s identity.150 The Nevada court noted Terry’s
observation that, “‘American criminals have a long tradition of armed
violence, and every year in this country many law enforcement officers are
killed in the line of duty, and thousands more are wounded.’”151 In
upholding the Nevada statute, the court’s reasoning focused on the Federal
Bureau of Investigation’s (“FBI”) statistics detailing the number of police
officers wounded or killed in the line of duty.152
The court also identified new levels of threats and violence in today’s
society, and noted that society must evolve its ways in order to protect
itself against these new evils.153 “[W]e are at war against enemies who
operate with concealed identities and the dangers we face as a nation are
unparalleled.”154 Former South Dakota Senator Tom Daschle has said that
terrorism is “‘changing the way we live and the way we act and the way we
149. Id.
150. Id. at 1205.
Additionally, if suspects are not legally required to identify themselves,
what could an officer do if a suspicious person were loitering outside a
daycare center or school? Perhaps that person is a sex offender . . . . In
these situations, it is the observable conduct that creates a reasonable
suspicion, but it is the requirement to produce identification that enables
an officer to determine whether the suspect is breaking the law.
Id. at 1205-06.
151. Id. at 1205 (quoting Terry v. Ohio, 392 U.S. 1, 23 (1968)).
152. See id.
Judicial notice is taken that in the year 2000, fifty-one officers were
murdered in the line of duty. These homicides occurred as follows:
thirteen during traffic stops/pursuits, twelve during arrest situations, ten
during ambushes, eight during responses to disturbance calls, six during
investigations of suspicious persons, and two during prisoner transport.
Of the suspects who committed these killings, twenty had been
previously arrested for crimes of violence, nine had previously assaulted
a police officer, and twelve were on probation or parole.
Id. (citing FED. BUREAU OF INVESTIGATION, U.S. DEP’T OF JUSTICE, CRIME IN THE
UNITED STATES 2000, at 291 (2001), available at http://www.fbi.gov/ucr/00cius.htm;
FED. BUREAU OF INVESTIGATION, U.S. DEP’T OF JUSTICE, LAW ENFORCEMENT
OFFICERS KILLED AND ASSAULTED 2000, at 28 (2001), available at http://
www.fbi.gov/ucr/killed/00leoka.pdf).
153. Id. at 1206.
154. Hiibel, 59 P.3d at 1206.
TREACY MACRO
916
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
think.’”155 The court cited several examples of these new dangers156 and
quoted President George W. Bush’s analysis of the changing times: “‘This
is a different kind of war that requires a different type of approach and a
different type of mentality.’”157 Influenced by the statements made by
Senator Daschle and President Bush, the Supreme Court of Nevada used a
different approach in its analysis of Nevada’s stop-and-identify statute and
held that the statute was constitutional.
The court reasoned that because people freely identify themselves
with great regularity in various social settings, it must follow that
reasonable people do not expect their identities to be withheld from the
police.158 When viewed in relation to these other examples of individuals
sharing their identities with strangers, the minimal invasion of personal
privacy would appear “nominal in comparison” when the police, with an
articulable suspicion, request a suspect to state his or her name.159 The
Supreme Court of Nevada further held that a name is neutral and nonincriminating and therefore not an invasion of privacy.160 “Such an invasion
is minimal at best. The suspect is not required to provide private details
about his background, but merely to state his name to an officer when
reasonable suspicion exists.”161 The court also held that the statute was
narrowly written since it applied solely to situations where the police have
an articulable suspicion that an individual “is engaged in criminal
behavior.”162 Therefore, the majority concluded, “[r]equiring a person
reasonably suspected of committing a crime to identify himself or herself to
law enforcement officers during a brief, investigatory stop is a
commonsense requirement necessary to protect both the public and law
155. Id.
156. Id.
During the recent past, this country suffered the tragic deaths of more
than 3,000 unsuspecting men, women, and children at the hands of
terrorists; seventeen innocent people in six different states were
randomly gunned down by snipers; and our citizens have suffered
illness and death from exposure to mail contaminated with Anthrax. We
have also seen high school students transport guns to school and
randomly gun down their fellow classmates and teachers.
Id.
157. Id. (quoting President George W. Bush, Address During a News Conference (Oct. 11,
158.
159.
160.
161.
162.
2001), available at http://www.cnn.com/2001/US/10/11/gen.bush.transcript/index.
html).
Id.
Id.
Hiibel, 59 P.3d at 1206.
Id.
See id. at 1207.
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 917
enforcement officers. It follows that [the stop-and-identify statute] is good
law . . . .”163
1.
Dissent
Justice Agosti wrote a dissent in which Justice Shearing and Justice
Rose joined.164 The dissent agreed with the majority that “the right to
wander freely and anonymously, if we so choose, is a fundamental right of
privacy in a democratic society,” but pointed out that the majority
abandoned this belief by requiring suspicious people to identify themselves
or risk arrest.165 “Anonymity is encompassed within the expectation of
privacy, a civil liberty that is protected during a Terry stop. The majority
now carves away at that individual liberty by saying that a detainee must
surrender his or her identity to the police.”166
It is well established that police officers may stop a person when there
is reasonable suspicion that the suspect “is engaged in illegal activity,” but
it is equally well established that detaining the suspect and requiring
identification is a seizure requiring adherence to Fourth Amendment
safeguards.167 Those constitutional safeguards, as interpreted by the United
States Supreme Court, demand that although the police are free to question
the suspect he or she cannot be compelled to answer.168 Additionally,
“unless the detainee volunteers answers and those answers supply the
officer with probable cause to arrest, the detainee must be released.”169
The dissent found the reasoning of the Ninth Circuit Court of Appeals
on the issue to be the more compelling position.170 In Martinelli v. City of
Beaumont, the Ninth Circuit held that allowing the police department to
arrest a suspect during a Terry stop for failing to identify herself was
unconstitutional because it gave the police the ability to arrest on less than
probable cause.171 The personal security of the woman in Martinelli was
163.
164.
165.
166.
167.
168.
Id.
Id. at 1207 (Agosti, J., dissenting).
Id.
Hiibel, 59 P.3d at 1208 (Agosti, J., dissenting).
See id. at 1207.
See id.; see also MURRELL & DWYER, supra note 44, at 19-20 (“People are under no
legal obligation to answer any of your questions. If they refuse to talk to you, you
may not use this refusal as a reason to arrest. In other words, the exercise of a civil
right cannot be used to help establish probable cause.” (emphasis omitted)).
169. Hiibel, 59 P.3d at 1207 (Agosti, J., dissenting) (citing Berkemer v. McCarty, 468 U.S.
420, 439 (1984)).
170. Id. at 1208.
171. Martinelli v. City of Beaumont, 820 F.2d 1491, 1494 (9th Cir. 1987); see also
Lawson v. Kolender, 658 F.2d 1362, 1366-67, 1369 (9th Cir. 1981) (noting that a
TREACY MACRO
918
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
greater than the “‘mere possibility that identification may provide a link
leading to arrest.’”172 The Ninth Circuit properly relied upon Terry’s
holding that a suspect detained by officers pursuant to a Terry stop may not
be required to answer questions.173
Justice Agosti also addressed the majority’s conclusion that the police
officer’s safety far outweighed the protection of the individual’s privacy
and identity.174 The majority relied upon FBI statistics to reach its decision,
but the dissent pointed out flaws in the majority’s logic.175 “The majority
relies upon FBI statistics about police fatalities and assaults to support its
argument. However, it does not provide any evidence that an officer, by
knowing a person’s identity, is better protected from potential violence.”176
Furthermore, the United States Supreme Court has already carved out
constitutional exceptions to protect officers from violence in Terry.177 After
Terry, an officer may conduct a limited weapons search, or pat down, to
discover weapons which may be used to assault him when the suspect may
be armed and presently dangerous.178 This search allows the police to
verify that the detained suspect is not armed with a dangerous weapon that
could be used immediately against the officer; it does not “ensure against a
detainee’s propensity for violence based upon a prior record of criminal
behavior.”179 According to the dissent, the majority wrongfully extended
Terry to provide unintended powers to the police force.180
172.
173.
174.
175.
176.
177.
178.
179.
180.
person cannot be punished for failing to identify himself when he was stopped on less
than probable cause).
Martinelli, 820 F.2d at 1494 (quoting Lawson, 658 F.2d at 1366-67); see also Carey
v. Nev. Gaming Control Bd., 279 F.3d 873, 880 (9th Cir. 2002) (holding that the
interest in personal security outweighs the potential link leading to an arrest that could
be obtained by the police when requesting identification from a suspect).
See Carey, 279 F.3d at 881-82.
Hiibel, 59 P.3d at 1209 (Agosti, J., dissenting).
Id.
Id.
Id.; see also Terry v. Ohio, 392 U.S. 1, 30 (1968).
Terry, 392 U.S. at 30; see also supra Part I.B (further detailing the Terry test).
Hiibel, 59 P.3d at 1209 (Agosti, J., dissenting).
See id.
It is well known that within the context of a Terry stop an officer’s
authority to search is limited to a pat-down to detect weapons. The
officer may investigate a hard object because it might be a gun. An
officer may not investigate a soft object he detects, even though it may
be drugs. Similarly, an officer may not detect a wallet and remove it for
search. With today’s majority decision, the officer can now,
figuratively, reach in, grab the wallet and pull out the detainee’s
identification.
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 919
The dissent next criticized the majority’s assertion that requiring
identification is merely a minimal invasion of privacy based upon the
number of times individuals identify themselves daily.181 The critical
distinction is that in those circumstances the identity is offered freely.182
Names are printed on credit cards and checks, but it is an individual’s
choice whether to keep such accounts or to pay for things with cash and
remain unidentified. Additionally, although passengers are required to
identify themselves with picture identification at airports, that step is
merely part of a business transaction; non-passengers are free to roam the
airport anonymously.183 Furthermore, merely knowing a suspect’s identity
does not alleviate the threat of danger to the officer, regardless of whether a
reasonable person would withhold identification from the police.184
The majority appealed to the general public’s fear of unidentified
terrorists, but as the dissent noted,
[n]ow is precisely the time when our duty to vigilantly guard the
rights enumerated in the Constitution becomes most important.
To ease our guard now, in the wake of fear of unknown
perpetrators who may still seek to harm the United States and its
people, would sound the call of retreat and begin the erosion of
civil liberties.185
The majority’s holding in this case eroded a layer of civil liberties and
weakened the nation’s freedom, a principle upon which this democratic
country was founded. “The undermining of that foundation is a harm more
devastating to our country and to this State than any physical harm a
terrorist could possibly inflict.”186
2.
United States Supreme Court
The Supreme Court granted certiorari and Justice Kennedy delivered
the majority opinion, which was joined by Chief Justice Rehnquist, Justice
Id.
181. See id.
182. See id. “What the majority fails to recognize, however, is that when we give our
183.
184.
185.
186.
names to new acquaintances, business associates and shop owners, we do so
voluntarily, out of friendship, or to complete a transaction.” Id.
See id. “Purchasing an airline ticket is a business transaction, and the airlines may
condition the sale on knowing who is the purchaser. In contrast, being forced to
identify oneself to a police officer or else face arrest is government coercion . . . .” Id.
Id.
Hiibel, 59 P.3d at 1209-10 (Agosti, J., dissenting).
Id. at 1210.
TREACY MACRO
920
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
O’Connor, Justice Scalia, and Justice Thomas.187 Having discussed the
evolution of vagrancy laws and early stop-and-identify statutes before the
Supreme Court, Justice Kennedy stated that Hiibel “begins where our prior
cases left off.”188 Justice Kennedy noted that there was “no question” that
Hiibel’s initial stop was based on reasonable suspicion; therefore, the case
was distinguishable from Brown v. Texas.189 Furthermore, the case
contained no challenge that the statute in question was unconstitutionally
vague so it also differed from Kolender v. Lawson.190 Justice Kennedy then
listed several cases supporting the holding that the officer’s conduct was
not a violation of the Fourth Amendment.191
The opinion then focused on the rights of police officers to demand
identification from suspects and the policy reasons behind those rights.
Justice Kennedy cited United States v. Hensley as an example that
“questions concerning a suspect’s identity are a routine and accepted part
of many Terry stops.”192 The Hensley Court justified the demand for
identification by balancing the strong government objective of solving
crimes against the minimal intrusion to the suspect’s privacy rights:
[W]here police have been unable to locate a person suspected of
involvement in a past crime, the ability to briefly stop that
person, ask questions, or check identification in the absence of
probable cause promotes the strong government interest in
solving crimes and bringing offenders to justice. . . . The law
enforcement interests at stake in these circumstances outweigh
the individual’s interest to be free of a stop and detention that is
no more extensive than permissible in the investigation of
imminent or ongoing crimes.193
The Court also held in Hayes v. Florida that where there are articulable
facts that demonstrate reasonable suspicion, an officer may detain a suspect
to ascertain his or her identity, to question him or her briefly, or to obtain
187.
188.
189.
190.
Hiibel v. Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177, 179 (2004).
Id. at 184.
Id.; see also Brown v. Texas, 443 U.S. 47 (1979).
Hiibel, 542 U.S. at 184. Another difference between Hiibel and Kolender is the
compelled information. In Kolender, the suspect was required to provide the officer
with “credible and reliable” information; in Hiibel, the Nevada Supreme Court
interpreted the statute to require only that the suspect reveal his name. Id. at 184-85.
191. Id. at 185-86 (citing United States v. Sharpe, 470 U.S. 675 (1985); INS v. Delgado,
466 U.S. 210 (1984); United States v. Place, 462 U.S. 696 (1983); Dunaway v. New
York, 442 U.S. 200 (1979); United States v. Brignoni-Ponce, 422 U.S. 873 (1975);
Terry v. Ohio, 392 U.S. 1 (1968)).
192. Hiibel, 542 U.S. at 186; see also United States v. Hensley, 469 U.S. 221, 229 (1985).
193. Hensley, 469 U.S. at 229.
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 921
some additional information.194 An earlier case, Adams v. Williams, also
justified the detention of a suspicious individual for identification
purposes.195
Justice Kennedy used these cases to support the holding that obtaining
a suspect’s name during a Terry stop serves an important government
interest, whether it is notifying the police that the suspect is wanted in
another crime or has a history of violence or mental disorder, or simply to
clear the suspicion surrounding the suspect and allow the police to continue
their search elsewhere.196 Therefore, it has been established that an officer
may ask a suspect to identify him- or herself during a Terry stop, but “it has
been an open question whether the suspect can be arrested and prosecuted
for refusal to answer.”197
The Court looked to its decisions in Terry and Berkemer for guidance
but did not find those cases, or the Court’s statements within the opinions,
controlling.198 The major difference was that the Nevada statute did not
require answers to any questions other than identifying oneself when so
requested by an officer.199 The majority reasoned that the state could
require that a suspect identify him- or herself within the context of a Terry
stop.200 When balancing the intrusion on the suspect’s Fourth Amendment
interests with the legitimate government interests, the Court determined
this temporary seizure to be reasonable.201 “The request for identity has an
immediate relation to the purpose, rationale, and practical demands of a
Terry stop. . . . A state law requiring a suspect to disclose his name in the
course of a valid Terry stop is consistent with Fourth Amendment
prohibitions against unreasonable searches and seizures.”202
The majority acknowledged the petitioner’s concern that the Nevada
statute circumvents the probable cause requirement, and thus grants the
194. 470 U.S. 811, 816 (1985).
195. 407 U.S. 143, 146 (1972) (“A brief stop of a suspicious individual, in order to
196.
197.
198.
199.
200.
201.
202.
determine his identity or to maintain the status quo momentarily while obtaining more
information, may be most reasonable in light of the facts known to the officer at the
time.”).
Hiibel, 542 U.S. at 186.
Id. at 186-87.
Id. at 187.
Id. “As a result, we cannot view the dicta in Berkemer or Justice White’s concurrence
in Terry as answering the question whether a State can compel a suspect to disclose
his name during a Terry stop.” Id.
Id. at 187-88.
Id. at 188 (citing the reasonableness test utilized in Delaware v. Prouse, 440 U.S. 648,
654 (1979)).
Hiibel, 542 U.S. at 188.
TREACY MACRO
922
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
police the power to arrest people simply for being suspicious.203 The Court
pointed to other cases with similar concerns204 and noted that a Terry stop
requires justification at the outset and must be “reasonably related in scope
to the circumstances which justified” the initial stop.205 Therefore, the
Court reasoned, an officer may not arrest a suspect for not identifying himor herself unless the request is reasonably related to the circumstances
which justified the initial stop,206 and both the stop of Hiibel and the
Nevada statute were held constitutional.207
The Court refused, however, to decide the case based on whether the
statute compelled statements that were testimonial and thus protected by
the Fifth Amendment prohibition against compelled self-incrimination.208
To be privileged, the communication must be “testimonial, incriminating,
and compelled”;209 the Court did not seek to resolve the issue of whether
stating one’s name is testimonial because in this case it determined that
Hiibel failed to prove that the disclosure of his name would create a
reasonable danger of incrimination.210 “As best we can tell, petitioner
refused to identify himself only because he thought his name was none of
the officer’s business.”211
Finally, the Court pointed to the narrow scope of the legislation
requiring a suspect to identify him- or herself.212 A person’s name, though
unique, is a “universal characteristic,”213 and answering a request to
disclose it is “likely to be so insignificant in the scheme of things as to be
incriminating only in unusual circumstances.”214 The Court noted that in
every criminal case the identity of the arrested suspect must be known215
203. Id.
204. Id. See generally Kolender v. Lawson, 461 U.S. 352 (1983); Brown v. Texas, 443
U.S. 47 (1979); Papachristou v. Jacksonville, 405 U.S. 156 (1972).
205. Hiibel, 542 U.S. at 188 (citing Terry v. Ohio, 392 U.S. 1, 20 (1968)).
206. Id.
207. Id. at 189. “The stop, the request, and the State’s requirement of a response did not
contravene the guarantees of the Fourth Amendment.” Id.
208. See id.
209. Id. (citing United States v. Hubbell, 530 U.S. 27, 34-38 (2000)).
210. Id. “In this case petitioner’s refusal to disclose his name was not based on any
211.
212.
213.
214.
215.
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.” Id.
(quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)).
Hiibel, 542 U.S. at 190.
See id. at 191.
Id.
Id. (citing Baltimore City Dep’t of Social Servs. v. Bouknight, 493 U.S. 549, 555
(1990)).
Id. (citing Pennsylvania v. Muniz, 496 U.S. 582, 601-02 (1990)).
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 923
and that witnesses who invoke the Fifth Amendment privilege still answer
their names when called to testify.216 There may arise a case where the
disclosure of a person’s name will incriminate him or her; until that time,
however, the Supreme Court refuses to determine whether the Fifth
Amendment privilege applies, and what, if any, remedy would follow.217
As the following dissenting opinions explain, that question should
have been resolved in Hiibel. The compelled information was testimonial
and should have been protected by the privileges of the Fifth Amendment.
3.
Dissenting Opinions
a.
Justice Stevens
Justice Stevens acknowledged that the Nevada law in question was
narrow in scope because it imposed the duty to speak upon a small class of
individuals, namely those who are targets of criminal investigations.218 The
statute requires that the individual in the targeted class identify him- or
herself but does not permit police to compel answers to any other
questions.219 “Presumably the statute does not require the detainee to
answer any other question because the Nevada Legislature realized that the
Fifth Amendment prohibits compelling the target of a criminal
investigation to make any other statement.”220 Although the statute is only a
narrow exception to the Fifth Amendment’s protection against selfincrimination, Justice Stevens contended that the “broad constitutional right
to remain silent . . . is not as circumscribed as the Court suggests, and does
not admit even of the narrow exception defined by the Nevada statute.”221
216. Id.
217. Hiibel, 542 U.S. at 191.
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 of a
separate offense. In that case, the court can then consider whether the
privilege applies, and, if the Fifth Amendment has been violated, what
remedy must follow. We need not resolve those questions here.
Id.
218. Id. at 191-92 (Stevens, J., dissenting) (citing Albertson v. Subversive Activities Bd.,
382 U.S. 70, 79 (1965)). “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.’” Id. (quoting NEV. REV.
STAT. § 171.123(1) (2003)).
219. NEV. REV. STAT. ANN. § 171.123 (LexisNexis 2001).
220. Hiibel, 542 U.S. at 192 (Stevens, J., dissenting).
221. Id.
TREACY MACRO
924
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
In Miranda v. Arizona, the Supreme Court held that the Fifth
Amendment’s privilege against self-incrimination extends beyond criminal
court proceedings.222 “It is a ‘settled principle’ that ‘the police have the
right to request citizens to answer voluntarily questions concerning
unsolved crimes,’ but ‘they have no right to compel them to answer.’”223
The privilege is specifically granted to those who are the “focus of the
government’s investigative and prosecutorial powers.”224 The Supreme
Court held in Carter v. Kentucky that the indicted defendant in a criminal
trial has an “unqualified right to refuse to testify and may not be punished
for invoking that right.”225 The Court also recently held in Chavez v.
Martinez that an unindicted target of a grand jury investigation shares the
same constitutional protections whether or not he or she has been served
with a subpoena.226 Miranda v. Arizona clearly established these
protections for those suspects subject to custodial interrogations in police
stations.227
Justice Stevens pointed out the flaw in the majority’s decision in light
of the aforementioned cases:
There is no reason why the subject of police interrogation based
on mere suspicion, rather than probable cause, should have any
lesser protection. . . . Given our statements to the effect that
citizens are not required to respond to police officers’ questions
during a Terry stop, it is no surprise that petitioner assumed, as
have we, that he had a right not to disclose his identity.228
The decision in this case, for Justice Stevens, hinged upon whether the
communication required by the Nevada statute is considered testimonial in
nature.229 The Fifth Amendment protects only testimonial communications
222. 384 U.S. 436, 467 (1966). The privilege “serves to protect persons in all settings in
223.
224.
225.
226.
227.
228.
229.
which their freedom of action is curtailed in any significant way from being
compelled to incriminate themselves.” Id.
Hiibel, 542 U.S. at 192-93 (Stevens, J., dissenting) (quoting Davis v. Mississippi, 394
U.S. 721, 727 n.6 (1969)); see also SIDNEY H. ASCH, POLICE AUTHORITY AND THE
RIGHTS OF THE INDIVIDUAL 6 (3d ed. 1971). “The police . . . do not have the power to
compel testimony, unless the person is first arrested, or to interrogate him under oath.
The person questioned can refuse to answer the questions, without giving any
explanation, and the law does not provide any punishment for such refusal.” Id.
Hiibel, 542 U.S. at 193 (Stevens, J., dissenting).
Id. (citing Carter v. Kentucky, 450 U.S. 288, 299-300 (1981)).
538 U.S. 760, 767-68 (2003).
Miranda, 384 U.S. at 467.
Hiibel, 542 U.S. at 193 (Stevens, J., dissenting).
See id. at 193-94.
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 925
and would not apply otherwise.230 The majority declined to resolve the case
on that basis,231 but Justice Stevens disagreed with its reasoning232 and
reiterated the test for determining whether a communication should be
viewed as testimonial.233 Based on the general definition, this
communication should qualify as testimonial, and the statute should be
voided as unconstitutional. “In all instances, we have afforded Fifth
Amendment protection if the disclosure in question was being admitted
because of its content rather than some other aspect of the
communication.”234 The question presented in the Nevada statute requires
an answer that will be admitted solely for its content. Therefore, as Justice
Stevens pointed out, the compelled statement is “clearly testimonial”235 and
should be protected under the Fifth Amendment.
The final argument, equally compelling as the previous arguments in
Justice Stevens’s dissent, addressed how the Court reached its decision.236
Instead of properly deciding whether the communication was testimonial,
the Court found that the statement was permitted because it was not
incriminating.237 The Supreme Court, however, has granted Fifth
Amendment protections to many statements that, taken alone, were not
incriminating. In United States v. Hubbell, the Court held that the privilege
against self-incrimination applied to compelled statements that led to
230. Id. “The Court correctly observes that a communication does not enjoy the Fifth
231.
232.
233.
234.
235.
236.
237.
Amendment privilege unless it is testimonial.” Id.; see also United States v.
Argomaniz, 925 F.2d 1349, 1356 (11th Cir. 1991). “To be testimonial, ‘a communication must itself, explicitly or implicitly, relate a factual assertion or disclose
information,’ it must ‘add . . . to the sum total of the government’s information . . . .’”
Id. (omissions in original) (quoting Doe v. United States, 487 U.S. 201, 210 (1988);
Fisher v. United States, 425 U.S. 391, 411 (1975)).
Hiibel, 542 U.S. at 189. “Respondents urge us to hold that the statements [the stopand-identify statute] requires are nontestimonial, and so outside of the Clause’s scope.
We decline to resolve the case on that basis.” Id.
Id. at 194 (Stevens, J., dissenting).
Id. “[W]e have stated generally that ‘[i]t is the extortion of information from the
accused, the attempt to force him to disclose the contents of his own mind, that
implicates the Self-Incrimination Clause.’” Id. (alteration in original) (quoting Doe v.
United States, 487 U.S. 201, 211 (1988)); see also Pennsylvania v. Muniz, 496 U.S.
582, 597 (1990) (“Whenever a suspect is asked for a response requiring him to
communicate an express or implied assertion of fact or belief, the suspect confronts
the ‘trilemma’ of truth, falsity, or silence, and hence the response (whether based on
truth or falsity) contains a testimonial component.”).
Hiibel, 542 U.S. at 194 (Stevens, J., dissenting).
Id. “Surely police questioning during a Terry stop qualifies as an interrogation, and it
follows that responses to such questions are testimonial in nature.” Id. at 195.
See id.
Id.
TREACY MACRO
4/12/2006 9:51 PM
926
NEW ENGLAND LAW REVIEW
[Vol. 40:897
incriminating evidence even when the statement itself was not
incriminating.238 In Kastigar v. United States, the Court considered
disclosures incriminating when they “could be used in a criminal
prosecution or could lead to other evidence that might be so used.”239
Communications that “would furnish a link in the chain of evidence needed
to prosecute the claimant for a federal crime” have also been considered
incriminating.240
Under any of the aforementioned definitions or qualifications, the
compelled statements required by Nevada’s stop-and-identify statute are
clearly testimonial and incriminating. Therefore, the protections of the Fifth
Amendment should apply. The majority in Hiibel failed to see why the
disclosure of a name creates a reasonable belief that it will be used against
the person.241 “But why else would an officer ask for it? And why else
would the Nevada Legislature require its disclosure only when
circumstances ‘reasonably indicate that the person has committed, is
committing or is about to commit a crime’?”242
b.
Justice Breyer
Justice Breyer also wrote a dissenting opinion, which Justice Souter
and Justice Ginsberg joined.243 Justice Breyer reiterated that the powers
granted to the police to perform a Terry search are, and always have been,
limited.244 A significant limitation is that a suspect may not be compelled to
answer questions.245 Justice Breyer noted that the Court in Terry v. Ohio
“considered whether police, in the absence of probable cause, can stop,
238. 530 U.S. 27, 37 (2000).
239. 406 U.S. 441, 445 (1972).
240. Hoffman v. United States, 341 U.S. 479, 486 (1951); see also Minnesota v. Murphy,
465 U.S. 420, 426 (1984).
[T]his prohibition not only permits a person to refuse to testify against
himself at a criminal trial in which he is a defendant, but also ‘privileges
him not to answer official questions put to him in any other proceeding,
civil or criminal, formal or informal, where the answers might
incriminate him in future criminal proceedings.’
241.
242.
243.
244.
245.
Id. (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)).
See Hiibel, 542 U.S. at 190-91.
Id. at 196 (Stevens, J., dissenting) (quoting NEV. REV. STAT. § 171.123(1) (2003)).
Id. at 197 (Breyer, J., dissenting).
Id.
Id. “Notwithstanding the vagrancy statutes to which the majority refers, this Court’s
Fourth Amendment precedents make clear that police may conduct a Terry stop only
within circumscribed limits. And one of those limits invalidates laws that compel
responses to police questioning.” Id.
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 927
question, or frisk an individual at all.”246 The Court concluded in Terry that
there are certain circumstances in which a very limited stop or seizure of a
person against his or her will is in the interest of public safety.247 To
provide a roadmap for what stops would be acceptable, the Court provided
conditions under which the police may conduct such a search, including
what has become known as “reasonable suspicion.”248
Justice Breyer created a timeline of cases decided by the Supreme
Court after Terry v. Ohio that challenged law enforcement’s ability to
reduce protections granted to citizens by the Fourth and Fifth
Amendments,249 including: Brown v. Texas in 1979;250 Kolender v. Lawson
in 1983;251 Berkemer v. McCarty in 1984;252 and Illinois v. Wardlow in
2000.253 The Court in all these cases referred back to Terry, reaching the
same conclusion each time: a detainee or suspect may be questioned by an
officer but in no way may be compelled to respond.254 Justice Breyer
explained how this consistent rule has been, and should continue to be,
considered the law of the land:
This lengthy history—of concurring opinions, of references, and of clear
explicit statements—means that the Court’s statement in Berkemer,
while technically dicta, is the kind of strong dicta that the legal
community typically takes as a statement of the law. And that law has
remained undisturbed for more than 20 years.
There is no good reason now to reject this generation-old
255
statement of the law.
246. Id.
247. Hiibel, 542 U.S. at 197 (Breyer, J., dissenting).
248. Id. In his concurring opinion in Terry, Justice White gave other conditions, adding,
249.
250.
251.
252.
253.
254.
255.
“[o]f course, the person stopped is not obliged to answer, answers may not be
compelled, and refusal to answer furnishes no basis for an arrest, although it may alert
the officer to the need for continued observation.” Terry v. Ohio, 392 U.S. 1, 34
(1968) (White, J., concurring).
See Hiibel, 542 U.S. at 197-98 (Breyer, J., dissenting).
443 U.S. 47 (1979).
461 U.S. 352 (1983).
468 U.S. 420 (1984).
528 U.S. 119 (2000).
See Hiibel, 542 U.S. at 197-98 (Breyer, J., dissenting). The Brown Court held that the
police lacked the reasonable suspicion required to detain a suspect and require him or
her to identify him- or herself. 443 U.S. at 53. The Berkemer Court held that a
detainee is not obliged to respond to any police questioning. 468 U.S. at 439. The
Kolender Court came to the same conclusion. 461 U.S. at 365 (Brennan, J.,
concurring). Finally, the Wardlow Court confirmed that a person merely “go[ing]
about his business” has a right to “ignore the police.” 528 U.S. at 125.
Hiibel, 542 U.S. at 198 (Breyer, J., dissenting).
TREACY MACRO
928
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
To reverse direction now is to approach the slippery slope. From
vagrancy laws to Terry stops to stop-and-identify statutes, an individual’s
right to privacy continues to be infringed upon more and more. Justice
Breyer asked, If requesting an individual’s name or identification is
deemed acceptable, what will be the next step and the next erosion of a
constitutionally guaranteed right?256 Will police be allowed then to request
license numbers or addresses and compel individuals to answer? Is the
police officer then required to keep track of or record these constitutional
answers? After all, Justice Breyer noted, “answers to any of these questions
may, or may not, incriminate, depending upon the circumstances.”257 It
appears that several lower courts agree with the dissenting Justices and do
not wish to go down that slippery slope.258 Several jurisdictions are already
seeking ways to distinguish the cases before them from Hiibel to avoid
following in its proverbial footsteps.259
IV. RECENT DECISIONS
A. State v. Diaz260
On May 15, 2003, the Supreme Court of Florida decided Florida v.
Diaz.261 In that case, a deputy sheriff observed a vehicle driven by Diaz
pass by with a temporary tag on it.262 The deputy was unable to read the tag
and initiated a traffic stop.263 As the deputy approached the car, he read the
tag and its expiration date, finding nothing improper.264 Still, he proceeded
to the driver’s side of the vehicle and “obtained information from Diaz, the
256. Id.
257. Id. at 2466.
Indeed, 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.” . . . The majority reserves judgment about whether
compulsion is permissible in such instances. How then is a 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?
258.
259.
260.
261.
262.
263.
264.
Id. at 199.
See infra Part IV.
See infra Part IV.
850 So. 2d 435 (Fla. 2003).
Id.
Id. at 436.
Id.
Id.
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 929
driver, which ultimately led to the charge against Diaz of felony driving
with a suspended license.”265
The court affirmed the lower court’s decision that “once the officer
had found the temporary tag to be proper, no further stop, detention, or
inquiry was justified.”266 The court elaborated,
It is undisputed that the law enforcement officer who made this
stop because he was allegedly unable to read the expiration date
on the vehicle’s temporary tag, was in fact able to read the date
upon approaching the car, and was totally satisfied that the
temporary tag was valid and no further question remained.
Therefore, when the deputy first made personal contact with Mr.
Diaz, he was without probable cause, reasonable or articulable
suspicion, or any other type of cause to believe or consider that
any violation had occurred or was occurring.267
The court noted that a citizen may not be detained even momentarily
without a reasonable and objective reason; furthermore, investigative
detentions must be carefully tailored in scope and last no longer than is
necessary to satisfy the purpose of the stop.268 “[S]uch detention must be
limited to satisfying the purpose for the initial intervention.”269
This case clearly differs from Hiibel in its reasoning and subsequent
result. Here, the motorist’s conviction was overturned because the initial
stop did not justify the steps proceeding to the point where the officer
discovered the suspended driver’s license. In Hiibel, the purpose for the
initial intervention was never satisfied—when Hiibel failed to identify
himself, the criminal investigation deviated from its original course and
became solely an attempt to ascertain Hiibel’s identity. The Diaz court
issued an ominous warning that would seemingly fall on deaf ears in the
United States Supreme Court:
It would be dangerous precedent to allow overzealous law
enforcement officers to place in peril the principles of a free
society . . . . To sanction further detention after an officer has
clearly and unarguably satisfied the stated purpose for an initial
stop would be to permit standardless, unreasonable detentions
and investigations.270
265. Id.
266. Diaz, 850 So. 2d at 436 (citing Diaz v. State, 800 So. 2d 326, 326-27 (Fla. Dist. Ct.
267.
268.
269.
270.
App. 2001)).
Id. at 437.
Id. at 438 (citing Florida v. Royer, 460 U.S. 491 (1983) (plurality opinion)).
Id.
Id. at 439-40.
TREACY MACRO
930
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
B. City of Topeka v. Grabauskas271
In City of Topeka v. Grabauskas, the Court of Appeals of Kansas
distinguished the case before it from Hiibel.272 In Grabauskas, two police
officers searching for two runaways stopped Mollie Grabauskas and her
sister Naomi.273 Although the two sisters “bore little resemblance to the
runaway girls,” the police stopped them to ascertain their identities.274 The
sisters confirmed that they lived in the area when questioned about it, and
they were subsequently asked for their names.275 Instead of answering, the
girls questioned why this information was required.276 When the police
replied that they were conducting an investigation, the girls profanely
replied that they were not required to answer.277 They were then arrested
and Mollie was cited for interference with city officers.278 Mollie was
found guilty and appealed to the Court of Appeals of Kansas.279
The court weighed “the public’s interest against an individual’s
substantial right to be free from police intrusions”280 and noted that
“because the officers had no articulable suspicion that the juvenile had
committed a criminal offense, the juvenile was entitled to walk away and
terminate the encounter with the police officers.”281 The court noted the
recent decision in Hiibel, but was clear in distinguishing the instant case.282
“Importantly, it was clear that the initial stop of [Hiibel] was based on
reasonable suspicion.”283 The court, having distinguished its case from
Hiibel, reversed the lower court’s decision.284
271.
272.
273.
274.
275.
276.
277.
278.
279.
280.
281.
99 P.3d 1125 (Kan. Ct. App. 2004).
Id. at 1134.
Id. at 1128.
Id.
Id.
Id.
Grabauskas, 99 P.3d at 1128.
Id.
Id. at 1129.
Id. at 1131.
Id.; see also Kansas v. McKeown, 819 P.2d 644 (Kan. 1991) (holding that a police
officer may approach and question an individual on the street without the encounter
becoming a seizure, but the individual may not be forced to answer and is free to
leave).
282. Grabauskas, 99 P.3d at 1133-34.
283. Id. at 1133. “Unlike the State of Nevada, we have no statute requiring persons to
identify themselves in voluntary stops involving the police. Hiibel is clearly
distinguishable from this case.” Id. at 1134.
284. Id. at 1128.
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 931
C. Adams v. Praytor285
Vuna Adams (“Adams”) brought his three children to a pre-arranged
meeting spot to return them to their mother, Dr. Sheila Adams (“Dr.
Adams”), after a planned visitation.286 Prior to their arrival, Dr. Adams had
been in the police station speaking with an officer and requesting assistance
to ensure that the children were dropped off safely.287 As Adams and his
cousin unpacked the children’s belongings, Dr. Adams and the police
officer, Officer Jason Praytor, crossed the parking lot to meet them.288
Officer Praytor spoke with Adams and his cousin in an apparent attempt to
identify the men and obtain the names of the children so he could complete
a written report regarding Dr. Adams’s trip to the police station.289 Officer
Praytor approached Adams and his cousin a second time, again asking
them to identify themselves.290 Officer Praytor said something that
offended or angered Adams, and a heated argument between the two men
ensued.291 Officer Praytor used his police radio to request officer
assistance, and other officers arrived shortly thereafter.292 Officer Wright
“then informed Adams that he was under arrest for failure to produce
identification and attempted to handcuff Adams.”293 After finally being
restrained, Adams was placed in a cell.294 The police then determined,
however, that Adams should not and could not be arrested under the Texas
“failure to identify” statute because police lacked probable cause.295
285.
286.
287.
288.
289.
290.
291.
292.
293.
294.
295.
Civ.A. 303CV0002N, 2004 WL 1490021 (N.D. Tex. July 1, 2004).
See id. at *1.
See id.
See id.
Id.
See id.
See Adams, 2004 WL 1490021, at *1. Adams alleged that “despite his compliance,
Officers Praytor and Wright grabbed him violently, threw him to the ground, and
forcibly handcuffed him, causing injuries including a fractured nose, abrasions, and
back, chest, knee, and leg injuries. Adams’s dress pants were torn during the arrest.”
Id. at *2.
See id.
Id.
Id.
See id.
Defendants do not contend that Adams or any of the bystanders posed
an immediate threat to the safety of the officers or each other.
According to all present, Adams was, at most, verbally argumentative.
He never threatened the officers nor posed a risk of escape. Adams
contends that he never refused to obey the officers (save for his refusal
to produce identification) and never resisted their attempts to restrain
him.
TREACY MACRO
932
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
This district court held that, absent probable cause, the police cannot
arrest an individual for failure to identify.296 Thus, the court clearly reached
the opposite result of Hiibel. Without elaborating fully, the Texas court
merely acknowledged, “[t]he Supreme Court has recently held that it is
constitutionally permissible in some circumstances to arrest a suspect for
the offense of failure to identify.”297 Therefore, the court refused to follow
Hiibel’s precedent, but instead carved out a nonspecific loophole allowing
it to reach the opposite conclusion based on reasonably similar facts.
D. St. George v. Texas298
The Texas courts distinguished another case, St. George v. Texas,
from Hiibel in 2004.299 In St. George, two police officers stopped a vehicle
because of a defective license plate light.300 The driver willingly provided
her name and identification when apprised of the reason she was
stopped.301 The police then requested that the passenger provide
identification.302 The passenger, Jeffrey St. George, told the officer that he
did not have identification but provided instead a name and date of birth
which later proved to be fictitious.303 When the officers ran a computer
check and determined that the name and date of birth were false, they again
questioned the passenger about his identity.304 After giving conflicting
answers about his name, the passenger admitted to being Jeffrey St. George
and provided his accurate date of birth.305 After performing a computer
check, the real information revealed that he had outstanding warrants, and
the officers arrested St. George.306 A search incident to arrest led to the
police finding marijuana in his pocket.307
Id. at *5.
296. Id. at *6. “The Texas Penal Code requires only a person who has been lawfully
297.
298.
299.
300.
301.
302.
303.
304.
305.
306.
307.
arrested to provide his name, address, or date of birth to a police officer who requests
identification.” Id.
Adams, 2004 WL 1490021, at *6 n.2 (emphasis added) (citing Hiibel v. Sixth Judicial
Dist. of Nev., 542 U.S. 177 (2004)).
Nos. 2-03-421-CR, 2-03-422-CR, 2004 WL 1944779 (Tex. Ct. App. Aug. 31, 2004).
See id. at *6.
Id. at *1.
See id.
See id. The officer testified that St. George “was ‘slouched down in the passenger’s
seat’ and that he avoided eye contact and seemed nervous.” Id.
See id.
See St. George, 2004 WL 1944779, at *1.
See id.
Id.
Id.
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 933
The court, turning to other Texas cases for precedent, stated that “it
appears at first glance that pursuant to a valid traffic stop, the police may
question a passenger without any additional reasonable suspicion.”308
However, after examining the facts of the other cases more closely, the
court held that “an officer may not, within the scope of a valid traffic stop,
request identification and check for outstanding warrants of passengers. In
order to conduct such an investigation of the passenger, the officer must
have separate reasonable suspicion of the passenger.”309 The court noted
that the officers would need more than just St. George’s behavior to justify
the search.310
The court also distinguished Hiibel, explaining why it was not bound
by the decision.311 It pointed to the fact that this case dealt with a valid
traffic stop, while Hiibel concerned a valid Terry stop.312 Although the
standard for the searches and demands for identification in both cases bear
the same standard—reasonable suspicion—the court sought to distinguish
itself rather than follow Hiibel’s precedent.313
E. Commonwealth v. Murphy314
When the Appeals Court of Massachusetts decided Commonwealth v.
Murphy in 2005, it also distinguished the case from Hiibel, reasoning,
[s]o long as the police do not employ words or conduct from
which a reasonable person might conclude that he is not free to
leave, the police do not need a constitutionally adequate basis, or
any basis, to approach an individual, strike up a conversation,
and request information. In such circumstances, the individual’s
willingness to remain or to reply is purely voluntary.315
Therefore, the Appeals Court of Massachusetts followed the case law
308. Id. at *4 (citing Duff v. State, 546 S.W.2d 283, 286-88 (Tex. Crim. App. 1977);
Tardiff v. State, 548 S.W.2d 380, 382-83 (Tex. Crim. App. 1977)).
309. Id. at *5.
310. See St. George, 2004 WL 1944779 at *6. (“[I]t is well settled that nervousness alone
is not enough to amount to reasonable suspicion.”).
311. Id. at *6 n.4 (“Our decision in this case is not affected by the United States Supreme
Court’s recent decision in Hiibel v. Sixth Judicial Court.”).
312. Id.
313. See id. (“[Hiibel’s holding] was predicated on a valid Terry stop, i.e., reasonable
suspicion. By way of contrast, the issue in the instant case is precisely whether the
deputies’ investigative detention of Appellant was supported by reasonable
suspicion.”).
314. 822 N.E.2d 320 (Mass. App. Ct. 2005).
315. Id. at 326 (emphasis added) (citing Commonwealth v. Thomas, 708 N.E.2d 669
(Mass. 1999)).
TREACY MACRO
934
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
precedent previous to that of Hiibel in making its decision.
Murphy dealt with a fight outside a nightclub in Boston.316 When the
police arrived and broke up the fight, there was still a large crowd milling
around.317 One individual, Michael Brown, related his observations of the
melee to the police and showed them a gold chain that he claimed belonged
to an individual in the fight, Kashmoni Murphy.318 Brown asked permission
to return the chain to Murphy, who had been arrested and was sitting in a
police cruiser, and he was directed instead to sit on a curb and wait.319
Another officer then “approached Brown, conducted a pat-frisk of Brown’s
person, and asked him for identification.”320 Nothing was discovered
during the pat-frisk, but the identification that Brown produced was
false.321 The officer then requested, “and Brown supplied, his name,
address, and date of birth.”322 This information was called in to the police
dispatcher who determined that there were no outstanding warrants against
Brown and reported that Brown’s license was suspended.323 A second patfrisk was conducted on Brown, and the officer discovered a small bag that
appeared to contain crack cocaine.324
The court determined that no justification existed for the pat-frisk or
detention of Brown.325 “Moreover, the demand that Brown produce
identification, made as [the officer] conducted a first pat[-]frisk, was not a
request for voluntary cooperation, but a show of authority with which a
reasonable person would feel compelled to comply.”326 The court noted
Hiibel in its discussion of alternate cases, but held that the detention,
search, and requirement of providing identification were invalid.327 Not
316.
317.
318.
319.
320.
321.
322.
323.
324.
See id. at 323.
See id.
See id. at 323-24.
See id.
Murphy, 822 N.E.2d at 324.
Id.
Id.
Id.
Id. The police later that night also checked the keys found in Murphy’s pocket against
the cars illegally parked in the area of the fight; they matched the key with a rental car
located there, performed an inventory search of the vehicle, and found a handgun
under the seat. Id. at 324-25.
325. Id. at 327.
326. Murphy, 822 N.E.2d at 327; see also ASCH, supra note 223, at 16-17 (“Although the
police . . . lack the power to . . . compel any person, arrested or not, to answer
questions, they are still quite effective. It is almost impossible, psychologically
speaking, to remain silent in the face of the brooding omnipresence of the law.”).
327. See Murphy, 822 N.E.2d at 327 (“[T]he factual predicate for a frisk of Brown’s
person, for his detention, or for the demand that he produce identification, was
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 935
even Brown’s possession of false identification justified the actions of the
police officers or gave rise to the need for the identification, detention, and
search.328 Therefore, this court also distinguished Hiibel’s precedent and
refused to follow it.
F.
State v. Baez329
The holding of the Supreme Court of Florida in State v. Baez
dangerously approaches the previously mentioned “slippery slope.” In
Baez, the police were notified of a vehicle parked at night near an
ordinarily abandoned warehouse area of Weston, Florida.330 The first
officer to arrive on the scene used his flashlight to view inside the van,
finding Baez slumped over the steering wheel of the parked vehicle.331 The
officer, concerned for Baez’s safety, knocked on the window and Baez
immediately woke up.332 Baez, who could not hear the officer through the
closed window, opened the door and exited the vehicle.333 Baez then
explained to the officer that he had simply fallen asleep, and the officer
requested identification.334 Baez provided his driver’s license which was
then used for a computer warrant check.335 The check revealed an
outstanding warrant from New Jersey and the officer arrested Baez.336 The
police later transferred Baez from one police car to another, during which
time two small plastic bags containing cocaine were discovered.337 The
Supreme Court of Florida held that Baez “was not unreasonably detained
while the officer ran a warrants check on Baez’s driver’s license.”338
The court reasoned that Baez voluntarily identified himself by
handing the officer his driver’s license, and thus, he was not unreasonably
detained while the officer ran the warrant search.339 “[T]he police officer
328.
329.
330.
331.
332.
333.
334.
335.
336.
337.
338.
339.
lacking. The second frisk of Brown, . . . which led to the discovery of cocaine on
Brown’s person, suffers from the same deficiencies.”).
See id. at 327 n.9 (“[T]he police were not entitled to demand that Brown remain until
clarification of the status of his driver’s license, even more so where there was no
indication Brown was driving a motor vehicle at the time.”).
894 So. 2d 115 (Fla. 2004).
Id. at 115.
Id.
Id. at 115-16.
Id. at 116.
Id.
Baez, 894 So. 2d at 116.
Id.
Id.
Id.
See id. In another case, the court found “that an officer could ask for identification
TREACY MACRO
936
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
was given the driver’s license in a consensual encounter. The question was
whether the police officer could then retain what he was consensually given
long enough to do the computer check.”340 The court answered the question
affirmatively, applying a “totality of the circumstances” test to the facts.341
The court reasoned that the officer had a “reasonable basis and reasonable
suspicion to investigate Baez further”342 and that Baez “voluntarily exited
his vehicle, and when asked for identification, gave his driver’s license to
the officer.”343 Viewing the totality of those circumstances, the court held
that it was reasonable for the officer to continue with the warrant check
because he “had not yet eliminated reasonable concern and justified
articulable suspicion of criminal conduct.”344
Therefore, this court has extended the reach of Hiibel, contrary to the
previously mentioned courts that distinguished cases in order to not be
bound by Hiibel’s precedent. The Supreme Court of Florida held that when
an individual provides identification to an officer voluntarily,345 and that
identification provides the link in the chain of evidence for another crime, it
is still a valid police procedure and does not violate the individual’s
constitutional rights.346 To the Supreme Court of Florida, the identification
was neither compelled nor testimonial in nature, and thus not selfincriminating.
340.
341.
342.
343.
344.
345.
346.
and take the identification to the police car to run a routine warrant check on the
information without there being an unconstitutional stop or seizure.” Id. (citing
Lightbourne v. State, 438 So. 2d 380 (Fla. 1983)).
Id. at 117.
See Baez, 894 So. 2d at 117.
Id.
Id.
Id.
In his concurring opinion, Justice Wells reasoned that the identification was made
voluntarily because Baez never requested the return of his license or left without it.
Id. at 119 (Wells, J., concurring). Furthermore, the court felt that a reasonable person
would have felt free to leave. Id. “Baez never requested his license back or made any
attempt to leave during the routine computer check. A total circumstances evaluation
of this case assumes that Baez is a reasonable citizen who could simply have said to
the officer, ‘I have got to go. Give me back my license.’” Id.
See id. at 117. This court did not decide the case in light of Fifth Amendment
protections, however, and thus distinguished it from Hiibel: “The Court need not
consider here the question of what would happen if a citizen, asked for identification
under somewhat similar conditions, and who upon declining to surrender such
identification, was placed under arrest.” Id. at 116-17 (quoting Lightbourne v. State,
438 So. 2d 380, 387-88 (Fla. 1983)). Justice Wells further distinguished the case in
saying, “Hiibel is different from this case in that it was a Terry stop case, and the
issue in the case was Nevada’s stop and identify statute.” Id. at 119 (Wells, J.,
concurring).
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 937
V. THE UNITED STATES SUPREME COURT SHOULD HAVE FOLLOWED ITS
OWN LEGAL TESTS TO DECIDE HIIBEL
Chief Justice Pariente, in his dissenting opinion in State v. Baez,
accurately stated,
[t]he majority’s holding that the officer had “sufficient cause to further
investigate” appears to create a category of police-citizen contact that is
neither fish nor fowl—neither wholly a consensual encounter nor a
detention supported by a reasonable suspicion of criminal activity. . . .
[T]he majority brings confusion to an area in which clarity is needed.347
The same reference applies to the United States Supreme Court with regard
to its holding in Hiibel. The Supreme Court went against decades of case
law, precedent, and dicta. In doing so, it too has brought confusion to an
area in which clarity is needed. It should have relied on its previous legal
tests and reasoning derived from decisions such as Miranda, Terry,
Berkemer, Kastigar, Brown, and Papachristou to determine whether
requiring individuals to identify themselves violates constitutionally
protected rights. Had the Court done that, it would have reached a much
different, and proper, result.
A. Test for Compulsion of Self-Incriminating Information
In 1966, the Supreme Court reasoned in Miranda that it was
necessary to protect constitutional privileges and insure that the privileges
were more important than the words themselves.348 It sought to delineate
“the manner in which the constitutional rights of the individual could be
enforced against overzealous police practices.”349 To this extent, the Court
created mandatory warnings against self-incrimination for police officers to
provide to all suspects prior to questioning.350 The Court summarized:
Our holding will be spelled out with some specificity . . . but briefly
stated it is this: the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of
the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination. By custodial
interrogation, we mean questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.351
347.
348.
349.
350.
351.
Baez, 894 So. 2d at 120 (Pariente, C.J., dissenting).
See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
Id.
See id.
Id.
TREACY MACRO
938
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
Therefore, since 1966, the Supreme Court has protected the constitutional
rights of suspected criminals by enforcing the police procedures it set forth
in Miranda.352
The test is whether a suspect or defendant was properly notified of his
or her rights through a full and effective warning against self-incrimination
at the beginning of the interrogation process while in custody, or otherwise
deprived of his or her freedom of action.353 A defendant may waive these
protections only when the waiver is made “voluntarily, knowingly and
intelligently,”354 and the Court unequivocally declared that these
protections begin as soon as the suspect is deprived of his or her freedom of
action in any significant manner.355 In doing so, the Court accomplished its
stated goal of creating “procedures which assure that the individual is
accorded his privilege under the Fifth Amendment to the Constitution not
to be compelled to incriminate himself.”356 The government, in a criminal
case, must “shoulder the entire load”357 when proving its case in court and
may not compel information from the defendant to aid its cause: “[O]ur
accusatory system of criminal justice demands that the government seeking
to punish an individual produce the evidence against him by its own
independent labors, rather than by the cruel, simple expedient of
compelling it from his own mouth.”358 These protections apply to those
who are in custody359 or subject to police interrogation or its functional
equivalent, and whose statements or actions are responsive and testimonial
in nature.360 “It is clear that the protection of the privilege reaches the
accused’s communications, whatever form they might take, and the
compulsion of responses which are also communications . . . .”361 They,
352.
353.
354.
355.
356.
357.
358.
359.
360.
361.
See supra Part II.A-B.
See Miranda, 384 U.S. at 469.
Id. at 444.
See id. at 467 (“Today, then, there can be no doubt that the Fifth Amendment
privilege . . . serves to protect persons in all settings in which their freedom of action
is curtailed in any significant way from being compelled to incriminate themselves.”).
Id. at 439.
Id. at 460 (internal quotations omitted).
Id. (citing Chambers v. Florida, 309 U.S. 227, 235-38 (1940)).
See, e.g., Topeka v. Grabauskas, 99 P.3d 1125, 1129 (Kan. Ct. App. 2004) (“Miranda
warnings are required only where there has been such a restriction on a person’s
freedom as to render him or her in custody.”).
See, e.g., Scott Lewis, Miranda Out on a Limb: How Much Flexibility Before Rules
Are Broken?, CRIM. JUST., Fall 1994, at 20, 21 (“‘In custody’ does not necessarily
mean that the person is in the presence of a police officer or is unable to part company
with an officer who is present.”).
Schmerber v. California, 384 U.S. 757, 763-64 (1966)); see also Kastigar v. United
States, 406 U.S. 441, 467 (1972) (Marshall, J., dissenting) (“The Fifth Amendment
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 939
therefore, should exist when interrogation occurs in police stations,
courtrooms, in a car, on the street, and anywhere else that police question a
suspect, including Nevada.
The police certainly deprived Larry Hiibel of his freedom of action
when Officer Dove questioned him in Nevada. Although he was willing to
help the officer in his investigation of the facts, Hiibel refused to identify
himself. The police compelled him to provide this information in violation
of his Fifth Amendment protection against self-incrimination, but the
Supreme Court, almost forty years after Miranda, failed to protect these
rights despite the absence of any voluntary, knowing, and intelligent waiver
of them during a custodial interrogation. This police interrogation fails the
Miranda requirements that the government shoulder the load in gathering
its evidence to prove its case.
However, even if the Court found, as the majority did in Hiibel, that
the suspect’s identification was not self-incriminating or reasonably
believed to be self-incriminating, the statute should still be repealed. This
compelled information is still testimonial and is potentially selfincriminating. Allowing police officers on the scene to determine in which
instances the information will be or may be self-incriminating encourages
arbitrary and erratic enforcement or arrests and convictions, as did the
statutes struck down in Papachristou and Brown: “Here the net cast is
large, not to give the courts the power to pick and choose but to increase
the arsenal of the police.”362 The arsenal here, however, should be
powerless as there is no benefit to the police. If the officer obtains the
information as an illegal fruit of the search/identification, it will be kept out
of court under the exclusionary rule.363 On the other hand, if the officer is
correct and the information is not self-incriminating, the police have gained
no advantage in solving another crime anyway. Therefore, the statute
gives a witness an absolute right to resist interrogation, if the testimony sought would
tend to incriminate him.”).
362. Papachristou v. City of Jacksonville, 405 U.S. 156, 165 (1972); see also Brown v.
Texas, 443 U.S. 47, 51 (1979).
363. Black’s Law Dictionary defines “exclusionary rule” with respect to criminal
procedure as “[a] rule that excludes or suppresses evidence obtained in violation of an
accused person’s constitutional rights . . . .” BLACK’S LAW DICTIONARY 587 (7th ed.
1999).
[C]ourts still retain their traditional responsibility to guard against police
conduct which is overbearing or harassing, or which trenches upon
personal security without the objective evidentiary justification which
the Constitution requires. When such conduct is identified, it must be
condemned by the judiciary and its fruits must be excluded from
evidence in criminal trials.
Terry v. Ohio, 392 U.S. 1, 15 (1968).
TREACY MACRO
940
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
should be repealed to avoid its erratic and arbitrary enforcement, even
when the information obtained is later found to be non-incriminating.
B. Test for Constitutionally Protected Searches and Seizures
The Court also misapplied its test of a justifiable stop, or seizure,
which it has been enforcing since 1968 when it decided Terry. A Terry stop
is constitutionally permitted solely because its scope is so narrow: it
permits an officer, with a reasonable and articulable suspicion but under
very limited circumstances, to pat down a suspect’s outer clothing in search
of a weapon which may be used to assault the officer.364 This allowance,
and the subsequent weapons search of the potentially armed and presently
dangerous suspect, protects officers from violent criminals, whereas
knowing a suspect’s identity and/or his or her propensity for violent crimes
does not.
Officer Dove legally may have searched Larry Hiibel for weapons if
there existed reasonable and articulable suspicion that he was armed or
dangerous based on the scene of the incident, Hiibel’s actions and
mannerisms, and the apparent assault charge being investigated. The
situation may have created the atmosphere which would justify the officer
frisking Hiibel, but it would not permit anything further,365 including
requiring Hiibel to identify himself. Knowing Hiibel’s identity in no way
better protected Officer Dove.
In holding that Officer Dove was justified in requesting Hiibel’s
identification to better protect himself, the Supreme Court misapplied its
own test for a constitutionally permitted search and seizure. The test, as
defined in Terry v. Ohio, provides a simple but thorough roadmap for
officers to follow when searching and seizing suspects without probable
cause: when the officer, (1) relying on his or her experience as a police
officer, (2) believes that criminal activity may be taking place, (3) believes
that the people the officer is dealing with may be armed and presently
dangerous, and (4) where the officer identifies him- or herself as such and
that does not dispel the officer’s reasonable fear for his or her own safety,
as well as the safety of others nearby, the officer may, solely for the
protection of him- or herself and others, “conduct a carefully limited search
of the outer clothing of such persons in an attempt to discover weapons
which might be used to assault [the officer].”366 Noticeably absent are any
requirement that the suspect identify him- or herself and the reasonable
belief that this identification will alleviate the officer’s fear.
364. See Terry, 392 U.S. at 30; see also MURRELL & DWYER, supra note 44, at 24-27.
365. See Terry, 392 U.S. at 24; see also MURRELL & DWYER, supra note 44, at 24.
366. Terry, 392 U.S. at 30.
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 941
However, even if the courts decide to extend the law to permit the
officers to request identification in situations that reasonably demand it for
the safety of the officer, once the police retain the identification in order to
conduct a warrant search they have detained the suspect and infringed upon
that individual’s constitutional rights. If a suspect is required to identify
him- or herself to alleviate any concerns of violence and/or mental
deficiencies, the voluntary identification ends there. Once the police retain
the identification and perform a computer check, they are compelling
information that potentially links the identification itself with other
warrants and crimes.367 This action requires the aforementioned
constitutional protections, regardless of the police officer’s reasonable fears
or suspicions, and cannot be justified without probable cause or the
appropriate Miranda warnings.
The situation that occurs when an officer asks for identification
and a person produces it involves a question and a response, an
exchange that can be fairly characterized as a “consensual
encounter” as that term is used in Fourth Amendment context.
But here the officers’ next action did not involve a question to
which defendant had the opportunity to choose to respond. The
exchange had ceased. By confiscating defendant’s identification
card and beginning an investigation, the officers turned the
otherwise voluntary encounter into a detention.368
Clearly the act of furnishing a link in the chain of evidence conforms
to the definition of incriminating,369 and that is what this unconstitutional
detention produces.370 Many courts, given similar fact patterns, continue to
367. HERMANN, supra note 101, at 9-13. “‘Many links frequently compose that chain of
testimony which is necessary to convict any individual of a crime. It appears to the
court to be the true sense of the rule, that no witness is compellable to furnish any one
of them against himself.’” Id. at 9 (quoting Counselman v. Hitchcock, 142 U.S. 547,
566 (1892)).
368. People v. Jenkins, 691 N.W.2d 759, 768 (Mich. 2005) (Cavanaugh, J., dissenting).
369. HERMANN, supra note 101, at 9 (“Incrimination [d]efined: Any answer which would
furnish a link in the chain of evidence that might be used to initiate a criminal
prosecution is incriminating.” (emphasis omitted)).
370. See Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 192-93 (2004)
(Stevens, J., dissenting).
A name can provide the key to a broad array of information about the
person, particularly in the hands of a police officer with access to a
range of law enforcement databases. And that information, in turn, can
be tremendously useful in a criminal prosecution. It is therefore quite
wrong to suggest that a person’s identity provides a link in the chain to
incriminating evidence only in unusual circumstances.
TREACY MACRO
942
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
apply these proper legal tests for searches and seizures, and thus reach the
constitutionally sound conclusion.371 Therefore, had the Court applied the
proper test under Terry it would have determined that compelling Hiibel to
identify himself did not protect Officer Dove, nor was it constitutional.
C. Test to Determine Whether Responses Are “Testimonial”
The Supreme Court erred in not deciding whether requiring an
individual to identify him- or herself is testimonial in nature. “[T]he
Court’s focus in evaluating the testimonial requirement has gradually
shifted from a simple inquiry as to whether there has been a compelled
communication of any kind, to a seemingly standardless ad hoc assessment
of whether a given communication is ‘sufficiently’ testimonial for purposes
of [F]ifth [A]mendment analysis.”372 The test to determine whether a
communication is testimonial is very simple: it “must itself, explicitly or
implicitly, relate a factual assertion or disclose information.”373 Verbally
identifying oneself or providing a form of identification conveys
information and asserts facts; therefore, that act must also be characterized
as testimonial.374 “Most verbal statements convey information or assert
facts and thus are testimonial.”375 The Supreme Court has “afforded Fifth
Amendment protection if the disclosure in question was being admitted
because of its content rather than some other aspect of the
communication.”376
Id. at 196 (internal quotations omitted).
371. See generally State v. Diaz, 850 So. 2d 435 (Fla. 2003) (holding that detention or
372.
373.
374.
375.
376.
inquiry of a suspect is unjustified without a police officer’s reasonable and articulable
suspicion); City of Topeka v. Grabauskas, 99 P.3d 1125 (Kan. Ct. App. 2004)
(holding that a police officer must be able to articulate a reasonable and objective
suspicion of criminal activity to justify a Terry stop); Commonwealth v. Murphy, 822
N.E.2d 320 (Mass. App. Ct. 2005) (holding that a reasonable person involved in a
voluntary encounter with a police officer is free to leave if he or she so chooses); St.
George v. State, Nos. 2-03-421-CR, 2-03-422-CR, 2004 WL 1944779 (Tex. App.
Aug. 31, 2004) (holding that a police officer must be able to point to specific,
articulable facts which reasonably warrant the intrusion of an investigative detention
to satisfy the totality of the circumstances test).
Charles Gardner Geyh, The Testimonial Component of the Right Against SelfIncrimination, 36 CATH. U. L. REV. 611, 614 (1987).
Hiibel, 542 U.S. at 189 (quoting Doe v. United States, 487 U.S. 201, 210 (1988)).
The majority did leave open the possibility that identifying oneself is testimonial in
nature, although it refused to resolve this case on that basis. “Stating one’s name may
qualify as an assertion of fact relating to identity. Production of identity documents
might meet that definition as well.” Id.
HERMANN, supra note 101, at 21 (emphasis omitted).
Hiibel, 542 U.S. at 194 (Stevens, J., dissenting) (citing Pennsylvania v. Muniz, 496
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 943
The Court should have followed its own precedent dealing with
questions posed by police officers. “[W]hatever else the term
[‘testimonial’] covers, it applies at a minimum . . . to police interrogations.”377 When Officer Dove questioned Larry Hiibel, it could safely be
characterized as a police interrogation as Dove was investigating the scene
of a possible crime. Hiibel should not have been compelled to give his
identification, or testimony, when it may have incriminated him; the Fifth
Amendment privilege is meant to insure that individuals are not compelled
to incriminate themselves through their own testimony.378 “It usually
operates to allow a citizen to remain silent when asked a question requiring
an incriminating answer.”379 It provides protection “by assuring that the
compelled testimony can in no way lead to the infliction of criminal
penalties.”380 Allowing police to require individuals to provide
identification that can be used to create a link in the chain of evidence of
criminal activity does not give effect to these protections; rather, it
guarantees that these protections are non-existent.
The Supreme Court held in Pennsylvania v. Muniz that questions in a
police station about a suspect’s name, address, height, weight, eye color,
date of birth, and current age qualify as a custodial interrogation.381 These
questions are allowed, however, because they were requested solely for
record-keeping purposes and thus are reasonably related to administrative
concerns.382 The Court did not agree with the state’s contention that the
questions were not part of a custodial interrogation “merely because the
questions were not intended to elicit information for investigatory
purposes.”383 Therefore, the responses to these questions, under Supreme
U.S. 582, 598-99 (1990)).
Id. at 195 (quoting Crawford v. Washington, 541 U.S. 36, 68 (2004)).
See Kastigar v. United States, 406 U.S. 441, 461 (1972).
Id.
Id.
496 U.S. 582, 601 (1990). These questions were excluded from Miranda protections,
however, under the “routine booking question” exception. Id. at 601. Asking the
suspect to give the date of his sixth birthday, however, was determined to be
inadmissible because it was incriminating. Id. at 592 (“[T]he trier of fact could infer
from Muniz’s answer (that he did not know the proper date) that his mental state was
confused.”).
382. Id. at 601-02. Justice Marshall argued that even these booking questions should be
protected by the Fifth Amendment. “[The exception] should not extend to booking
questions that the police should know are reasonably likely to elicit incriminating
responses . . . . [B]ecause those questions were not preceded by Miranda warnings,
Muniz’s testimonial responses should have been suppressed.” Id. at 608-09 (Marshall,
J., dissenting).
383. Id. at 601 (majority opinion).
377.
378.
379.
380.
381.
TREACY MACRO
944
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
[Vol. 40:897
Court precedent, qualify as custodial interrogation even when the answers
will be used only to secure the information required for booking a suspect.
How, then, is it possible that a suspect outside of a police station must
answer these questions when the responses are solely part of an ongoing
investigation and the answers thus may be potentially incriminating?
CONCLUSION
The well-settled policy of our courts and police departments before
Hiibel was that a person could not be compelled to answer a police
officer’s questions.384 Even those individuals that the police arrested could
not be compelled to answer questions.385 Furthermore, individuals did not
need to state a reason for refusing to answer, nor could they be punished for
such refusal.386 Beyond this, the Fifth Amendment grants an even greater
privilege in protecting individuals from self-incrimination.387 Therefore, it
was a well-established rule that police cannot compel an individual to
provide testimony that is incriminating. Until Hiibel, that policy remained
virtually unchallenged.
The Supreme Court reversed decades of legal reasoning with its
decision in Hiibel v. Sixth Judicial District Court of Nevada.388 It
incorrectly reached the decision that requiring an individual to identify
him- or herself was not self-incriminating. With that, the Court took away
constitutional rights and protections. If the Court, at the very least, had held
that giving one’s identity was testimonial, then it may have found stop-andidentify statutes unconstitutional anyway, despite the fact that in this
particular case Larry Hiibel’s identification did not incriminate. Doing so
would have prevented future erratic and arbitrary arrests and convictions.
The major stumbling block for the majority in Hiibel was that the
identification in this case did not furnish a link in the chain of evidence to a
separate criminal offense. Therefore, the Court did not decide whether
producing the identification was testimonial or whether it would have been
a violation of the Fifth Amendment privilege if the identification had given
the police a link in the chain of evidence. In doing so, it has only postponed
ruling on those issues. The dissent realized that identification is testimonial,
384. See MURRELL & DWYER, supra note 44, at 19-20. See generally, e.g., Illinois v.
385.
386.
387.
388.
Wardlow, 528 U.S. 119 (2000); Berkemer v. McCarty, 468 U.S. 420 (1984);
Kolender v. Lawson, 461 U.S. 352 (1983); Brown v. Texas, 443 U.S. 47 (1979);
Terry v. Ohio, 392 U.S. 1 (1968) (Harlan, J., concurring); City of Topeka v.
Grabauskas, 99 P.3d 1125 (Kan. Ct. App. 2004).
ASCH, supra note 223, at 16-17.
Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966).
See U.S. CONST. amend. V.
542 U.S. 177 (2004).
TREACY MACRO
4/12/2006 9:51 PM
2006] HIIBEL V. SIXTH JUDICIAL DISTRICT COURT OF NEVADA 945
and the act of running it through a police computer in a search for
evidentiary links must be incriminating. Furthermore, the dissent followed
the Court’s previous legal tests, reasoning, holdings, and dicta to reach its
conclusion, similar to what other courts have done for decades. The dissent
asserted that the holdings and dicta provided an undisturbed statement of
the law: no one is required to respond to police questioning and no one may
be compelled to provide self-incriminating testimony.
It is a very dangerous path before the courts now. Many lower courts
are facing the challenge to distinguish cases from Hiibel to permit different
results and preserve civil liberties. Some courts, however, like the Supreme
Court of Florida, are extending Hiibel and denying civil liberties that they
once protected. Justice Frankfurter spoke of the loss of individual liberties
many years ago: “History bears testimony that by such disregard are the
rights of liberty extinguished, heedlessly at first, then stealthily, and
brazenly in the end.”389 Justice Agosti echoed a similar statement in his
dissenting opinion in Hiibel:
The terrorist threat has shaken our complacency. Our way of life
is threatened as never before. At this time, this extraordinary
time, the true test of our national courage is not our necessary
and steadfast resolve to defend ourselves against terrorist
activity. The true test is our necessary and steadfast resolve to
protect and safeguard the rights and principles upon which our
nation was founded, our constitution and our personal
liberties.390
As some courts continue to distinguish themselves from Hiibel while
others do not, there will inevitably remain a split in authority and the issue
will again return to the U.S. Supreme Court in the future. If the Court then
relies on the proper legal tests and decades of previous decisions, it may
reach a different, constitutionally sound decision than the one it reached in
Hiibel v. Sixth Judicial District Court of Nevada.
Michael D. Treacy
389. Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).
390. Hiibel v. Sixth Judicial Dist. Court of Nev., 59 P.3d 1201, 1210 (Nev. 2002) (Agosti,
J., dissenting).
TREACY MACRO
946
4/12/2006 9:51 PM
NEW ENGLAND LAW REVIEW
****
[Vol. 40:897