The Supreme Court hears oral argument this morning in the "drunken cowboy" case, a privacy dispute that has the conspiracy nuts in a tailspin and me in trouble with my Civil Procedure professor. The issue in Hiibel v. Sixth Judicial District Court of Nevada is variously described by the amicus briefs and the editorialists as whether the police have the right to demand your "papers"; mandate national identity cards; and impede ordinary citizens' freedom to roam free. But as the justices on the Supreme Court weigh in today, it's clear most of them don't see the case this way. One after another dismisses the national ID card debate as not at issue here. One after another suggests—and to a rather frightening degree, at times—that this case has nothing to do with innocent people, or ordinary people. This case has to do with "suspicious" people, and—as you were no doubt aware—suspicious people are not like you or me.
Cowboy Dudley Hiibel is challenging a Nevada statute, NRS 171.123 (3), which says the police can require someone detained pursuant to a so-called "Terry stop" to identify themselves. The Terry stop—cooked up in a 1968 case, Terry v. Ohio—carved out an exception to the old Fourth Amendment requirement that people can't be searched and seized absent "probable cause" to believe they'd committed a crime. If "probable cause" signified the level of police commitment necessary for a meaningful relationship with a criminal defendant, Terry authorized the one-night-stand, giving cops the right to initiate quickie detentions—including a brief, unerotic frisk—of folks who are sort of suspicious but not suspicious enough to justify an arrest. Several concurring opinions in Terry said that cops could ask questions during these brief encounters, but suspects had no obligation to answer. But in several cases over the years, the high court hasn't squarely addressed that the rule. The Nevada law, on the other hand, says the failure to provide your name during these stops is illegal. So, here we are.
Nevada police, responding to a report of a man beating a woman in a truck, saw what they believed to be that truck on the side of the road. Hiibel was leaning on the passenger side having a smoke. His teenage daughter was in the cab. Hiibel seemed drunk. It was all captured on video, so you can play along at home. The crucial bit is where Hiibel is asked 11 times to identify himself, and—not knowing why the cop is asking—he refuses. The cops arrested him and charged him for that refusal. Hiibel challenged the law as unconstitutional. The Nevada Supreme Court voted 4-3 that there is nothing unconstitutional about a law forcing suspects in a Terry stop to provide their name, in light of the pressing government need to identify bad guys and the minimal privacy intrusion in sharing your name. Hiibel appealed that decision.
The court has two grounds on which to declare the Nevada law unconstitutional—the Fourth Amendment's guarantee againstunreasonable searches and seizures and the Fifth Amendment's guarantee against self-incrimination. Robert E. Dolan, Hiibel's public defender from Winnemucca, Nev., advances both. Justice Sandra Day O'Connor wants to know why this is different from any traffic stop—where the police have the right to demand your license. The answer is that Hiibel wasn't driving—he was outside the truck, and the notion of implied consent ("We let you drive cars/ride airplanes/cross borders in exchange for the right to demand your ID") is not at issue here. O'Connor (and the rest of America) wants to know if the fact that Hiibel was drunk counts for anything. Dolan argues that there was never a court finding that he was driving drunk.
Justice Antonin Scalia betrays his wholehearted suspicion of dangerously "suspicious" people with a question about the whole purpose of Terry stops: "Can't you stop someone suspicious, to see what's going on?" he asks. Dolan says policemen may ask, but no one has to answer. Chief Justice William H. Rehnquist asks if one has a similar right to refuse to be frisked by a policeman during a Terry stop (sort of an Antioch College rule for pat-downs). Dolan doesn't think so. Justice Anthony Kennedy then asks whether policemen have the right to demand the names of witnesses to, say, a fatal bank shooting. Dolan says no.
Justice Ruth Bader Ginsburg similarly points out that it's a bit odd that the police can run the vehicle's license plates but not ask your name. Rehnquist adds: "You can ask if he's the registered owner of the car, but you can't ask his name?" All this just shows how complicated this case is, simply because Hiibel was leaning on a car, as opposed to walking down the street. We keep dancing along the edges of implied consent—which makes for complicated hypotheticals.
Scalia says that a rule allowing folks to refuse to identify themselves "assumes no responsibility on the part of citizens." Revealing his own take on the fundamental badness of generally suspicious people, he adds, "I can't imagine any responsible citizen who would object to giving his name." Scalia just hasn't spent enough time in Winnemucca, is all.
Ginsburg and Dolan exhibit confusion about whether Hiibel's daughter was in the passenger or driver's side of the truck. The Nevada Supreme Court indicated she was on the passenger side, suggesting that the drunk guy was driving. But Dolan insists she was driving and "slid over." Scalia then expresses amazement that a cop performing a Terry stop would have to "turn on his heel" and walk away if a suspect said, "I ain't talking," even if he was "hanging around a jewelry store at 2 a.m." Dolan helpfully suggests, "Maybe he was purchasing jewelry for his paramour and doesn't want his wife to know." Scalia shoots back that this is "possible but not probable." Heh heh.
Kennedy circles back to the Fifth Amendment claim, saying the rule should be that offering up one's name is not self-incriminatory because it's "not probing memory or perception," it's "just a fact."
The chief justice then wonders what happens when the police walk onto a murder scene, find eight or nine people there, and a body on the floor. "Can he ask for names?" asks Rehnquist. He can ask, but there is no obligation to respond. "How can the police ever solve a murder case?" he asks. Scalia again raises the Fifth Amendment. "Only guilty people have the right not to answer," he says. "Is it only the person beating the woman in the truck who has a right not to give his name?" he asks. And Justice David Souter jumps in: "If I was walking down the street and a cop turned and said 'Who are you?'would I have a Fifth Amendment right to refuse?" Dolan says he could refuse if there is a criminal punishment attached to the refusal.