Peter Koclanes, Unreasonable Seizure: “Stop and Identify” Statutes Create an Illusion of Safety by Sacrificing Real Privacy: Hiibel v. Sixth Judicial District Court, 124 S. Ct. 2451 (2004)

57 Fla. L. Rev. 431 (2005) | | | |

TEXT :: In the course of a lawful stop, police asked Petitioner, Larry Hiibel, to identify himself, a demand permissible under Nevada’s “stop and identify” statute. After refusing to give his name, Hiibel was arrested and subsequently found guilty of violating the “stop and identify” law. Hiibel appealed, but the Sixth Judicial District Court rejected his argument that the statute violated his Fourth and Fifth Amendment rights. On constitutional review, the Supreme Court of Nevada upheld the conviction, agreeing with the Sixth Judicial District Court that the invasion of Hiibel’s privacy was slight in comparison to the public’s interest in police safety. The Supreme Court of the United States granted certiorari, and in affirming the judgment of the Supreme Court of Nevada, HELD, that the Nevada statute did not violate the Fourth or Fifth Amendment of the United States Constitution.

The Fourth Amendment ensures the right of the people to be free from unreasonable searches and seizures of their “persons, houses, papers, and effects.” The key issue in a Fourth Amendment challenge is whether the police action is reasonable; relevant factors in a reasonableness analysis include both the indignity and duration of a search. In determining whether or not a given Fourth Amendment intrusion is reasonable, courts employ a balancing test, weighing three factors: “[1] the gravity of the public concerns served by the seizure, [2] the degree to which the seizure advances the public interest, and [3] the severity of the interference with individual liberty.”


In Brown v. Texas, a case demonstrating minimum standards of reasonable suspicion, the Supreme Court applied such a three-factor test. In Brown, the defendant violated a Texas statute requiring a person to identify himself during a lawful police stop. Reversing the defendant’s conviction, the Court found that police did not have any basis for a reasonable suspicion that the defendant was engaged in a crime, and thus the stop was unlawful. The Court reasoned that, in the absence of objective facts leading a reasonable person to suspect that the defendant committed a crime, the balance between the public’s interest and the defendant’s privacy tilted in favor of privacy. The Court found that the public’s interest in preventing crime was not compelling because the defendant had done nothing to indicate misconduct and was, in effect, an innocent bystander.

Terry v. Ohio contains a more nuanced display of the balancing test in action because, in Terry, police had a basis for reasonable suspicion. After witnessing suspicious activity, an officer frisked the defendant and, upon finding weapons, arrested him. On writ of certiorari, the Supreme Court agreed that the officer was reasonable in his suspicion that the defendant was about to commit a robbery and might be armed. The Court applied the balancing test, weighing the governmental interests in crime prevention and police safety against the intrusion upon the defendant’s rights. Though the privacy intrusion involved in a bodily frisk was admittedly substantial, the Court ultimately held that the frisk served the goal of neutralizing a threat to police and the public.

Hayes v. Florida involved a fairly invasive seizure of the defendant’s person, while police sought identifying characteristics other than the defendant’s name. There, police brought a suspect to the station for fingerprints. While investigating a rape, police visited the home of the defendant and threatened to arrest him if he did not accompany them to the station for fingerprinting. The defendant complied, and when his prints matched those found at the crime scene, he was arrested and subsequently found guilty. The state appellate court affirmed the conviction, finding that even without sufficient probable cause to arrest the defendant, police nonetheless had the requisite reasonable suspicion to at least seize his prints. After granting certiorari, the United States Supreme Court reversed, finding no probable cause, no consent, and no warrant. Although the Court held that a suspect cannot be brought to the station for fingerprinting without probable cause, it left the door open for exceptions. For example, detaining a suspect in the field for on-site fingerprinting might require only reasonable suspicion, but the process would have to be carried out quickly to be considered reasonable. Additionally, the action would have to be relevant insofar as it might establish or negate the suspect’s connection with the crime.

The reasonableness balancing test applies to all seizures that might violate the Fourth Amendment, and Terry expanded the state interest balanced in the first factor of the test by carving out a police safety exception. Subsequent cases, such as Hayes, considered other factors of the test, illustrating that the outcome could be tipped one way or the other if, for example, the seizure was too long or if the purpose of the seizure did not actually advance the public interest. Because the test is controlling authority, some judges concluded that “stop and identify” laws were unconstitutional unless the act of seizing identity advanced the government’s interest by establishing or negating the suspect’s connection with crime. Justice White’s concurring opinion in Terry supports this position, as do several cases that apply Terry. Thus, the pertinent dicta suggests that a person could legally stand mute when asked his name.

When faced with the specific facts of the instant case, however, the United States Supreme Court feared that giving credence to such prior dicta would jeopardize public safety. The instant Court found it necessary to part ways with prior cases indicating that anonymity was protected under the Fourth Amendment. In the majority opinion written by Justice Kennedy, the instant Court first reviewed the history of “stop and identify” statutes, demonstrating a well-established state interest in stopping crime and detaining potentially dangerous suspects. The Court then recognized the following constitutional limitations on such statutes: the initial stop must be based on reasonable suspicion, and any seizure must be limited in scope so that it relates to the circumstances that justified the stop.

Addressing the Fourth Amendment issue, the instant Court first examined the state interest. The ability to stop a suspect, ask questions, or check identification allows police to solve crimes and bring offenders to justice. The Court reiterated the concern that was so important in Terry- safety. The instant Court noted that identification may reveal a criminal record or mental disorder, helping police assess threats to themselves and to potential victims. After framing the debate in this context, the instant Court rejected Justice White’s concurring opinion in Terry, which indicated that a person could legally refuse to give his name. Applying the balancing test anew, the instant Court then weighed the established state interests promoted by the Nevada law against the intrusion upon individual privacy.

The Court noted that under the principles articulated in Terry, and later in Hayes, “an officer may not arrest a suspect for failure to identify himself if the request . . . is not reasonably related to the circumstances justifying the [initial] stop.” The instant Court found that a request for identification was a “commonsense inquiry,” and it was therefore reasonably related to the stop. Further, the instant Court believed that the seizure had an immediate relation to the needs of society. As to the countervailing privacy interests being sacrificed, the Court believed that the burden of self- identification was negligible. Assuming that the initial stop in the instant case was legal, the officer’s request for identification did not waste any more of Petitioner’s time than that already being wasted by the initial stop. Finding the Fourth Amendment invasion to be slight compared to the law’s utility in promoting public safety, the instant Court affirmed the judgment of the Supreme Court of Nevada.

Four Justices dissented from the majority opinion, disagreeing with the majority’s treatment of the constitutional challenges. Joined by Justices Souter and Ginsburg, Justice Breyer addressed the Fourth Amendment issue. Justice Breyer viewed the Nevada statute as an unreasonable and unnecessary encroachment on a citizen’s right to control his own person. Recognizing that public safety will require a stop or seizure under certain circumstances, Justice Breyer indicated that there are still constitutional limits on “when and how.” Justice Breyer quoted Justice White’s dicta from Terry, stating that a person need not answer any question posed to him. Justice Breyer then cited several other past cases in which the Court had expressed a position similar to Justice White’s. Justice Breyer felt that such a lengthy history of case law including concurring opinions, explicit statements, and dicta, when considered as a whole, was “the kind of strong dicta that the legal community . . . takes as a statement of the law.” As a result, for the past twenty years, much of the legal community had been under the impression that a person could stand mute in the face of police questioning. Justice Breyer saw no reason to deviate from this well- tested policy. Furthermore, Justice Breyer expressed concerns that the majority’s opinion could lead to a slippery slope for Fourth Amendment seizures. Stressing that the majority had presented no evidence that anonymity interferes with police safety, Justice Breyer concluded that the majority had eroded a clear rule with “special exceptions.

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