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June 25, 2004 - The Drug War Chronicle (US Web)

When Remaining Silent Is a Crime

US Supreme Court Rules Cops Can Arrest Those Who Refuse to Identify Themselves

Return to Drug War News: Don't Miss Archive

US citizens have no constitutional right to refuse to identify themselves when requested by police who suspect a crime has been committed, a sharply divided US Supreme Court ruled Monday. The court upheld a Nevada law making it a crime for someone suspected of a criminal offense to refuse to name himself to police officers. Similar laws obtain in 20 other states. (See the end of this article for a list of those states).

The ruling came in the case of Larry Hiibel, a Nevada rancher. A passerby reported to police what looked like a man beating a woman in a pickup truck parked on the side of the road. When police arrived, Hiibel, who was standing outside the truck with his daughter inside, said he had done nothing wrong and refused to identify himself.

After asking for Hiibel's name 11 times, the police officer arrested him under a Nevada law that permits police to detain criminal suspects for up to 60 minutes to compel them to identify themselves. Hiibel was convicted of violating the mandatory ID law, and that conviction was upheld by a state appeals court, then by Nevada's Supreme Court, and now by the US Supreme Court.

The decision marks the first time the Supreme Court has held that a citizen may be arrested for failing to provide information to police during an encounter in which he may become the target of a criminal investigation. The First Amendment provides a right to privacy and the Fifth Amendment provides citizens with the right to remain silent. But the Supreme Court majority brushed aside First and Fifth Amendment concerns, arguing that providing one's name to police is an "insignificant" act.

"One's identity is, by definition, unique; yet it is, in another sense, a universal characteristic," wrote Justice Anthony Kennedy for the majority. "Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances."

Joining Kennedy in that 5-4 decision were Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas.

But in a biting dissent, Justice John Paul Stevens noted that the majority's logic was inconsistent. Since under the Nevada law in question, police can only demand the name of someone whom they find suspicious, that person is by definition a criminal suspect who is protected by the Fifth Amendment injunction that he may not be compelled to incriminate himself. "The court reasons that we should not assume the disclosure of petitioner's name would be used to incriminate him," Justice Stevens writes. "But why else would an officer ask for it?"

Neither is providing one's name to police an "insignificant" act, Stevens wrote. "A name can provide the key to a broad array of information about a person, particularly in the hands of a police officer with access to a range of law enforcement databases."

And that has civil libertarians upset. "It's a green light to explore the bounds of how much personal information can be demanded on pain of arrest," said Timothy Lynch of the libertarian Cato Institute. "It also gives a green light to Congress to move with a national law," he told the Christian Science Monitor.

"While we think this ruling is unfortunate, it doesn't change anything as far as what you should do to protect your rights during police encounters," said Steven Silverman, executive director of Flex Your Rights, a group devoted to instructing citizens how to best exercise their rights when stopped by police.

"If you're on the street and they don't have reasonable suspicion, just keep walking. But if they ask for your name on threat of arrest, you might want to give it to them. But other than that, everything remains the same: Continue to refuse to consent to searches, continue asking if you are free to go, and if you are arrested, keep your mouth shut and ask for a lawyer."

People need to read past the headlines, Silverman told DRCNet. "The headlines say things like 'Court Rules Police Can Demand ID,' but that isn't entirely accurate. They can demand that you identify yourself only if they have reasonable suspicion a crime has been committed, and these sorts of laws are on the books in only 21 states. You might want to figure out if you are in one of those states," he suggested.

Flex Your Rights has produced a video, "BUSTED: A Citizens' Guide to Surviving Police Encounters," and Silverman was quick to point out that the information in "Busted" in still valid. "This ruling has absolutely no impact on the information we provided in 'Busted,'" he said. "Former ACLU head Ira Glasser narrated the video, and he vetted the language very carefully. He said you're not necessarily required to show ID, but that laws vary from state to state. That still holds true."

States with laws requiring citizens to provide their names to police officers when requested include: Alabama, Arkansas, Colorado, Delaware, Florida, Georgia, Illinois, Kansas, Louisiana, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Dakota, Rhode Island, Utah, Vermont and Wisconsin.

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